Petition for Writ of Certiorari — Serna-Guerra v. Holder (No. 08-983)

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Supreme Court, U.S.

a FILED

\\> oa 08-983 FEB 2- 2009

IN THE

Supreme Court of the Gnited States

JOSE ANGEL SERNA-GUERRA,

Petitioner.

MARK FILIP, ACTING ATTORNEY GENERAL,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL F. STURLEY DAVID C. FREDERICK

LYNN E. BLAIS Counsel of Record

727 East Dean Keeton St. KELLOGG, HUBER, HANSEN,

Austin, Texas 78705 TODD, EVANS & FIGEL,

(612) 232-1350 P tat.

1615 M Street, N.W.

JAVIER N. MALDONADO Suite 400

110 Broadway St. Washington, D.C. 20036

Suite 510 (202) 326-7900

San Antonio, Texas 78205

(210) 277-1603

February 2, 2009

QUESTION PRESENTED

The generic definition of the phrase “crime of vio-

lence” in 18 U.S.C. § 16 is incorporated by reference

throughout federal criminal and immigration laws,

as well as within tiie U.S. Sentencing Guidelines. In

each of these contexts, a wide range of significant

adverse consequences flows from the determination

that a particular offense is a “crime of violence”

under § 16. For example, “crime of violence” is an

element of several federal crimes; prior convictions

for a “crime of violence” support substantial enhance-

ments under the Sentencing Guidelines; and, as

shown in this case, a long-term permanent resident

with a decades-old conviction for an offense found to

be a “crime of violence” is subject to removal.

Most states have criminalized the unauthorized

use of a vehicle in substantially the same terms as

the specific statute at issue in this case. All those

statutes prohibit such activities as joyriding, failing

to return a rental car on time, using a company

car on personal business, borrowing a friend’s car

without permission, and obtaining possession of a car

under false pretenses.

The question presented is:

Does unauthorized use of a vehicle constitute a

“crime of violence,” as the Fifth Circuit has repeat-

edly held, or does that offense fall outside the § 16

definition, as the Tenth Circuit has held?

PARTIES TO THE PROCEEDINGS

Petitioner Jose Angel Serna-Guerra was the respon-

dent before the Immigration Judge and the Board of

Immigration Appeals and the petitioner in the court

of appeals proceedings.

The Honorable Michael B. Mukasey, Attorney

General, was the respondent in the court of appeals

proceedings, and the Honorable Mark Filip, Acting

Attorney General, is being substituted as respondent

in this proceeding.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS ......................... il

po ot Olas 8) ys te vi

INTRODUCTION

CREO PUNE UNE ois bsonncessvasnaveivxnscnracdevaceusysessecentqun 2

a ie sala dee nacdoaweNNcaiminiereaiaiouekiiiain 3

STATUTORY PROVISIONS INVOLVED.................

STATEMENT

ES PRCA ER ARTE eT o ese OR EOC eee PETC OTOP Oe wee :

Be. TORRES TAEITONIINEE 00 5 innisicicnncericssscessscsescnssen

C. Proceedings Below

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW CANNOT BE

RECONCILED WITH THIS COURT'S

DECISIONS IN LEOCAL, BEGAY, AND

CHAMBERS, AND IS, THEREFORE,

“SIMPLY WRONGLY DECIDED”

THE DECISION BELOW ENTRENCHES

AN ACKNOWLEDGED CONFLICT ON

AN ISSUE OF PRACTICAL IMPOR-

A. The Fifth Circuit’s Holding That UUV

Constitutes A Crime Of Violence

Under 18 U.S.C. § 16(b) Is In Direct

And Irreconcilable Conflict With The

Tenth Circuits Conclusion To The

Contrary

B. The Fifth Circuit’s Conclusion That

Texas UUV Constitutes A Crime

Of Violence Conflicts With Decisions

In Numerous Circuits That Reject

That Classification For Other Crimes

Involving More Risk Of Violence ............ 15

E. FRM SIGE oon sass se cecccasccenees 16

2. ABBGUIE GG TAttOHy ...............00..0s.c000- 17

3. Unlawful Imprisonment..................... 18

Gi iia eilnibidssdacenseiatineisoantios 18

ic | N E iiin Sisisicicisusicacedaccspieswess 19

Ill. WHETHER UNAUTHORIZED USE OF

A VEHICLE CONSTITUTES A CRIME

OF VIOLENCE IS A FREQUENTLY

RECURRING ISSUE OF SIGNIFICANT

I I oc ce ee a 19

A. The “Crime Of Violence” Definition

Recurs In Numerous Statutes................. 19

B. Resolving The Circuit Spht Is Of

Exceptional Public Importance For

Ensuring The Uniform National Ap-

plication Of Immigration Laws............... 22

C. Resolving The Circuit Spht Is Of

Exceptional Public Importance Not

Only In The Immigration Context But

Aliso For The Uniform National Appli-

cation Of Federal Criminal Laws............ 25

IV. THIS CASK PROVIDES AN IDEAL

VEHICLE FOR RESOLVING THE EN-

TRENCHED CONFLICT AMONG THE

Ree ee GIS Na nt ccncntcacvassivawebenssvbicdensthass 26

RNs ni viichvcacndpentcinasasisncs nnreeaeeavteaaees 28

APPENDIX:

Opinion of the United States Court of Appeals

for the Fifth Circuit, Serna-Guerra v. Mukasey,

No. 07-60634 (May 30, 2008)

Order of the Board of Immigration Appeals, /n

re Jose Angel Serna-Guerra, File A388 099 578

(San Antonio, Texas) (July 31, 2007)

Order of the Board of Immigration Appeals, In

re Jose Angel Serna-Guerra, File A38 099 578

(San Antonio. Texas) (July 24, 2006)

Oral Decision of the Immigration Judge, Jn re

Jose Angel Serna-Guerra, Case No. A38-099-578

(San Antonio, Texas) (Feb. 4, 2005)

Order of the United States Court of Appeals

for the Fifth Circuit Denying Rehearing and

Rehearing En Banc, Serna-Guerra v. Mukasey,

DOG. BTS EPG. S, DOIG) «2.0.0. hn cnncnccssccncsscoesoeses 23a

Statutory Provisions Involved:

I es Jets nea 3la

18 U.S.C. § 924(e) (excerpt)

TEX. PENAL CODE § 31.07

Vil

TABLE OF AUTHORITIES

Page

CASES

Begay v. United States, 128 S. Ct. 1581

TS A AE een RR Ll. 7, 6. t% 143

Bejarano-Urrutia v. Gonzales, 413 F.3d 444

(4th Cir. 2005)

Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir.

SEE aera ee emt pen ert 4, 6, 11,

Chambers v. United States, No. 06-11206, 2009

WL 63882 (U.S. Jan. 13, 2009) ................. ia. ft

lo; Bok eis

Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003)

Garcia v. Gonzales, 455 F.3d 465 (4th Cir.

2006)

Graham v. Richardson, 403 U.S. 365 (1971)

Jobson v. Ashcroft, 326 F.3d 367 (2d Cir.

2003)

Leocal v. Ashcroft, 543 U.S. 1 (2004).......... 1, 4, &, 6, 7,

S, 20, £4. £3.

13, 14, 15, 17, 18, 20

Omar v. INS, 298 F.3d 710 (8th Cir. 2002) ............. 17

vil

United States v. Armendariz-Moreno, 258 F.

App’x 666 (5th Cir. 2007), vacated, No. 07-

10061 (U.S. Jan. 21, 2009)

United States v. Castillo-Lucio, 256 F. App’x 720

(5th Cir. 2007), vacated, No. 07-9674 (U.S.

Jan. 21, 2009)

United States v. Charles:

275 F.3d 468 (2001), superseded on rehg en

banc, 301 F.3d 309 (5th Cir. 2002)

301 F.3d 300 (6th Cir. 2002) .........c.cssserevecseees 12,13

United States v. Galvan-Rodriguez, 169 F.3d

er te i SON ss ccc 4, 6, 8, 9,

il, 12. 14, 26, 17

United States v. Moore, 38 F.3d 977 (8th Cir.

United States v. Perez-Gutierrez, No. 07-2129,

2008 WL 5250240 (0th Cir. Dec.

United States v. Reyes-Figueroa, 282 F. Appx

330 (5th Cir. 2008), vacated, No. 08-6406

Sees My Get, I no csssnaskgsnssaienidecbeeencumens 8, 27

United States v. Sanchez-Garcia, 501 F.3d 1208

Ce Ne hsb vdndasadavienncan’ 6, 9, 14, 15, 20

United States v. Torres-Villalobos, 487 F.3d 607

(8th Cir. 2007)

Zavydas vu. Davis, 533 U.S. 678 (2001)..................... 2 j

vill

CONSTITUTION, STATUTES, AND

REGULATIONS

U.S. Const. art. I, § 8, cl. 4

Armed Career Criminal Act, 18 U.S.C. § 924.....12, 20

CEES. COM |. | ee aaa mEnRnULen prise 2

18 U.S.C. § 924(e)(1)

18 U.S.C. © ORATOR onc cncsosccencdeunaonns 9

Immigration and Nationality Act, 8 U.S.C.

8 U.S.C. § 1101(a)(43)(F)

8 U.S.C. § 1101(a)(43)(G)

8 U.S.C. § 1182(c) (1994) (repealed 1996).............

8 U.S.C. § 1227(a)(2)(A) Qn)

8 U.S.C. § 1227(a)(2)(E)()

8 U.S.C. § 1252(a)(1)

S U.S, & EG vse sicstispecieisscsarosinereae 5

8 U.S.C. § 1252(a)(5)

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, § 115(1), 100 Stat. 3359,

TE aivnissicjiwndsinnycdnsavi’paoin yn eernteenaeneniie al ateaeaeeeaaaeienn 22

Lie eS SemeeReNnCer: 1,2 4,7, 18, 19, 20, 25

18 U.S.C. § 16(a)

SUES. © 0QGA 5c donueee 1.4.58 1h

12, 13, 14, 15, 16,

17, 18, 19, 21, 23, 25, 26

DE UGC. & 1BGAEDD ...ccecesiccsccssecd an eee 2

IE SE RAED 0 RON oo cccdinvwossassassonsessorsesdsesses' 21

Se. SEE. STAT. & 13- LEOSA)C2) .....c.cccccccsccccscsccccnses 14

SS SL ee 2]

I EOE ME WOUENID Eos coco ccccciesssncccseccsocsccesesenseecees 2]

een Panes, C20. 1E, § BSZ..........ccccccssescessosssessanecs 21

IE Te Se nN GE LOD 5, ca sasveccccncescesccesvccconseussoaccsvscaesees 21

I SEE, FORMS OG 2... ..0ccseccceccssessdcccnsnvedetvoss 21

eee. eT. ANN, © 614.100 .000.....ccccccccceccncesessecses 21

ee, SERA, ANI, © U456B. 4 .......cccscccossccsevesvecscccsses 21

ME. REV. STAT. ANN. tit. 17-A, § 360(A) ................... 21

MD. CODE ANN., CRIM. LAW § 7-203(a)(1) .............205- 21

MASS. GEN. LAWS ANN. ch. 90, § 24 ..................cecc00s. 21

MICH. COMP. LAWS ANN. § 750.414..............c.ceceecee ees 21

eee, SNE ANN. © 45-G-S06..........cccscccosccccssccsvccssvnes 21

Es PON EG ec cauvassascccssevessnsecdssusisbvenscaves 21

Deeme. SRV. STAT. ANN. § G34:3. ............ccccscccscccsseseveeses 21

eres, RaAW © FGGB.05...........cccsccscocsccsscvescsevscenedees 21

Pees See, STAT. ANN. § 14-72.2 ...........ccccscccccsorssccceses 21

Pee, Se. CODE § 1:2.1-23-OG ........0..secccccccccscscsseesces 21

[900 REV. CODE ANN. § 2913.03................cccccsccsseecees 21

OKLA. STAT. ANN. tit. 47, § 4-102.........................0000 21

men, See. STAT. ANN. §. 164.135.....0......c00..cccccccscene- en ee

Bere, SONS. STAT. ANN. § SO2ZS............cccccccescoasenaces 21

an, RAPID LAWS § 22-SOA-12..........ccccoccrcesececccees 21

TENN. CODE ANN. § 39-14-1066 ..............ccc cece eee BORER 21

TEX. PENAL CODE:

Co RES ee ears avert SOM eae 3

Fhe Ee Ree MIN AOE so es 2

eT e MEMEO ETS

I cee La Des a os secs shanGne i aeueainaon 3

CITAH CODE ANN. © 42-10-1514 .......cccccccceccssessscescesees 21

¥.. CODE ANN. tit. 14, $ GO-1367Z ................scccccvceseans. 21

ag Se I Se Be FAO hiesvnh ie itcisecnncscdccndsdccvscdccacts ai

WASH. REV. CODE ANN. § 9A.56.070 ..........ccceeceec scenes 21

Be i, Ce ee PI sak vescnvaccnsnccdvvccncccccncedsuats 21

ot ey OR bg ee eS) zi

U.S. Sentencing Guidelines:

NE, OU ESO OLLIE TELS 26

CT a ds dace aasuueh aueuneaens 20

oni a icin chee dus shosnuh chuaeadacaganssackacivunians 12

ADMINISTRATIVE MATERIALS

U.S. Dep't of Justice, F'Y 2007 Statistical Year

Book (Apr. 2008), avatlable at http://www.

usdoj.gov/eoir/statspub/fyO7syb. pdf ................. 23

OTHER MATERIALS

Brief for the United States in Opposition, Casttllo-

Lucto v. United States, No. 07-9674 (U.S.

Ee Ne he I ais teisiknccncecagdisacieecomcoricccdsracediuws 27

Juan Castillo, Deportations from Central and

South Texas Hit Record, Austin-American

Statesman, Nov. 7, 2008, at Bl

Spencer S. Hsu & Sylvia Moreno, Border Pol-

tcys Success Strains Resources: Tent City

in Texas Among Immigrant Holding Sites

Drawing Criticism, Wash. Post, Feb. 2, 2007,

Fi ected cies Lac meiiak aidan anaemia aceouneraieeabnemabete 23,

Dianne Solis, [mmigration Prosecutions Surge

Under Bush’s Watch, Dallas Morning News,

Jan. 13, 2009, at 1A

Dianne Solis & Alejandro Martinez, Immigra-

tion Agents Arrest Nearly 800 at Pilgrim's

Pride Plants, Dallas Morning News, Apr. 17,

2008, at 1A

TRAC Reports, Inc.:

Convictions for September 2008, available at

http://trac.syr.edu/tracreports/bulletins/overall/

a ec aeeepens

Prosecutions for September 2008, available at

http://trac.syr.edu/tracreports/bulletins/overall/

monthlysep08/fil/

Jose Angel Serna-Guerra respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit

in this case.

INTRODUCTION

This petition raises the frequently recurring issue

whether the unauthorized use of a vehicle (UUV)

constitutes a “crime of violence” under 18 U.S.C.

§ 16. That issue is now the subject of a direct and

acknowledged conflict between the Fifth Circuit

below and the Tenth Circuit. The Fifth Circuit's

longstanding and entrenched rule simply cannot

be squared with the decisions of this Court, most

recently in Chambers v. United States, No. 06-11206,

2009 WL 63882 (U.S. Jan. 13, 2009) (to be reported

at 129 S. Ct. 687); Begay v. United States, 128 S. Ct.

1581 (2008); and Leocal v. Ashcroft, 543 U.S. 1 (2004).

Taken together, those cases clearly stand for the

proposition that mere unauthorized use of a vehicle

lacks the requisite elements to constitute a crime of

violence within the meaning of 18 U.S.C. § 16(b).

The Fifth Circuit’s stubborn adherence to its rule

has deepened an existing conflict among the circuits

and shows no sign of abating. The court’s application

of its precedent has particularly pernicious conse-

quences in this case. Petitioner has been a lawful

resident since 1983, when he was 17 years old. His

deportation proceedings were commenced in 2004 on

the basis of a UUV conviction in 1986 when he was

20 years old (that was served fully and set aside by

the state). Now 42 years old and with no other blem-

ishes on his record, petitioner suddenly finds himself

subject to removal, separation from his family, and

dislocation in all aspects of his life from a decades-old

conviction for UUV. Aside from the elemental justice

of this Court’s reversing that harsh result, this Court

can clarify the types of offenses that fall within the

definition of “crime of violence” while bringing the

Fifth Circuit into line with Supreme Court precedent

and the approaches of the vast majority of other

circuits. The petition should be either granted out-

right, therefore, or granted, vacated, and remanded

for reconsideration in light of Chambers.

OPINIONS BELOW

The opinion of the court of appeals (App. la-10a)

is reported at 285 F. App’x 110. The relevant orders

of the Board of Immigration Appeals (App. 1la-15a)

are not reported but are available at 2007 WL

2463989 and 2006 WL 2427888. The oral decision of

the Immigration Judge (App. 16a-22a) is not reported.

JURISDICTION

The court of appeals entered its judgment on May

30, 2008, amd denied a timely petition for rehearing

on November 3, 2008 (App. 23a). This Court’s juris-

diction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions — 18 U.S.C. §§ 16

and 924(e), and Texas Penal Code § 31.07 — are

reproduced at App. 31la-32a

STATEMENT

A. Facts

In 1983, petitioner, then a 17-year-old Mexican

national, entered the United States as a legal per-

manent resident. R. 12.! He has lived in the United

States ever since. R. 10, 12. His wife, children, par-

ents, and siblings reside in the United States, and all

of his immediate family members are U.S. citizens

except his wife and father. R. 12.

In 1986, petitioner pleaded guilty to a charge of

unauthorized use of a vehicle (UUV) in a Texas

state court. Under Texas law, “|a] person commits

an offense [of UUV] if he intentionally or knowingly

operates another’s ... motor-propelled vehicle with-

out the effective consent of the owner.” TEX. PENAL

CODE § 31.07{a).2. The court sentenced him to five

years imprisonment, suspended his sentence, and

placed him on probation for five years. R. 228. After

he satisfactorily compieted one-third of his proba-

tionary period, the court discharged petitioner from

further probation, set aside his conviction, and dis-

missed the indictment. R. 234. This 23-year-old

UUV conviction is the only blemish on the record of

petitioner, now 42 years old.

B. Statutory Background

Under the Immigration and Nationality Act (INA),

“la]ny alien who is convicted of an aggravated felony

at any time after admission 1s deportable.” 8&8 U.S.C.

'“R.” citations are to the Certified Administrative Record of

Proceedings in the court of appeals.

- At the time of petitioner's conviction, UUV was a third-

degree felony. See TEX. PENAL CODE § 31.07 (1986). The Texas

Penal Code has since been amended, and UUV is now a state

jail felony. See TEX. PENAL CODE § 31.07(b).

§ 1227(a)(2)(A)(iii). ~The list of offenses that consti-

tute aggravated felonies includes “a crime of violence

(as defined in section 16 of Title 18, but not including

a purely political offense) for which the term of im-

prisonment [is] at least one year.” Jd. § 1101(a)(43)(F).

Under 18 U.S.C. § 16, a crime of violence is:

(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,

(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.

Many other statutory provisions, both criminal and

noncriminal, incorporate § 16's definition of “crime of

violence.” See Leocal v. Ashcroft, 543 U.S. 1, 6 (2004).

In Leocal, this Court held that a state-law driving

under the influence (DUI) offense was not a “crime of

violence” under § 16. The Court reasoned that a neg-

lhgent DUI did not involve the offender's acting with

sufficient disregard of another person’s safety to

meet the elements of a crime of violence. See id. at 8-

Both before and after Leocal, the Fifth Circuit has

broadly construed § 16(b) to include a Texas UUV

offense. See United States v. Galvan-Rodriguez, 169

F.3d 217 (5th Cir. 1999) (per curiam). Even after

Leocal, which other courts and commentators have

found to be inconsistent with Galvan-Rodriguez, the

Fifth Circuit has repeatedly adhered to its view that

UUV is a “crime of violence” under § 16(b). See, e.g.,

Brieva-Perez v. Gonzales, 482 F.3d 356, 360-62 (5th

Cir. 2007).

C. Proceedings Below

In 2004, the Department of Homeland Security

(DHS) initiated removal proceedings against peti-

tioner. R. 256. DHS charged petitioner under

8 U.S.C. § 1227(a)(2)(A)(Gii), alleging that his 1986

UUV conviction was an aggravated felony conviction

because UUV is a crime of violence.* R. 252. The

Immigration Judge found that petitioner was remov-

able as charged based on his 1986 UUV conviction

and ordered him removed to Mexico.’ App. 21a.

On appeal, the BIA affirmed the Immigration

Judge’s order and, following the established rule

in the Fifth Circuit, held that UUV is a crime of

violence under 18 U.S.C. § 16(b). App. 15a.

Petitioner sought review of the BIA decision in the

Fifth Circuit. which had jurisdiction under 8 U.S.C.

§ 1252(a)(1), (a)(2)(D), and (a)(5).. The government,

however, successfully requested a remand to permit

the BIA to consider further whether UUV constitutes

a crime of violence in the Fifth Circuit and to con-

sider the impact of this Court's decision in Leocal. R.

55. On remand, the BIA again held that petitioner's

UUV conviction was for a crime of violence under

* DHS also alleged that petitioner's 1986 conviction consti-

tutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)

based on the argument that UUV is a theft offense for which

the term of imprisonment is at least one vear. R. 254. While

the Immigration Judge concluded that petitioner was removable

based on both charges, the Board of Immigration Appeals (BLA)

and the Fifth Circuit addressed only whether UUV constitutes a

crime of violence.

' Petitioner also sought relief under former § 212(c) of the

INA, 8 U.S.C. § 1182(c) (1994) (repealed 1996), which both the

Immigration Judge and the BIA denied. The Fifth Circuit did

not address that issue and petitioner does not raise it here.

Fifth Circuit precedent and dismissed the appeal.

App. 12a (citing Brieva-Perez).

Petitioner again sought review in the Fifth Circuit.

The court of appeals held that the question whether

UUV constitutes an aggravated felony was foreclosed

by Fifth Circuit precedent, which required it to grant

the government's motion for summary affirmance.

App. 2a (citing Brieva-Perez and Galvan-Rodriguez).

The court nevertheless “urge|d] and recommend|led}

that that precedent should be reconsidered and over-

ruled by [the] en banc court.” Jd. The panel argued

that this Court in Leocal had “rejected [the] entire

rationale” for the Fifth Circuit's rule, App. 4a n.4,

and noted a direct conflict with the Tenth Circuit,

App. 5a-7a.

The Fifth Circuit denied petitioner's timely petition

for rehearing en banc. App. 23a. Four judges dis-

sented from the denial of rehearing. They argued

that the “continued classification of UUV as a crime

of violence directly conflicts with the Supreme Court’s

decision in Leocal,” App. 24a, and that the decision to

deny rehearing “prolongs an unnecessary disagree-

ment with the Tenth Circuit, which correctly con-

cluded ... that an indistinguishable offense under

Arizona law is not a crime of violence,” App. 28a (cit-

ing United States v. Sanchez-Garcia, 501 F.3d 1208

(10th Cir. 2007)). The dissenters concluded by noting

both their “obligation to correct panel rulings that

conflict with [the Supreme Court’s] instructions,”

App. 29a, and the “overarching interest in maintain-

ing the uniformity of federal immigration laws and

consistency 1n their enforcement,” id.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW CANNOT BE REC-

ONCILED WITH THIS COURT'S DECI-

SIONS IN LEOCAL, BEGAY, AND CHAM-

BERS, AND IS, THEREFORE, “SIMPLY

WRONGLY DECIDED”

The panel below felt bound to follow circuit prece-

dent and summarily affirm in this case, notwith-

standing its conviction that the circuit precedent was

both incorrect and inconsistent with this Court’s

holding in Leocal v. Ashcroft, 543 U.S. 1 (2004). App.

2a, 4a. The dissent from denial of rehearing en banc

reiterated both points in arguing that the Fifth Cir-

cult has significantly misinterpreted 18 U.S.C. § 16.

App. 24a, 29a-30a. This Court’s recent decisions in

Begay v. United States, 128 S. Ct. 1581 (2008), and

Chambers v. United States, No. 06-11206, 2009 WL

63882 (U.S. Jar. 13, 2009) (to be reported at 129 S.

Ct. 687), validate these assertions. Ultimately, the

Fifth Circuit's continued adherence to its contested

analysis of § 16(b) cannot be reconciled with this

Court’s relevant jurisprudence, and the entire line of

cases is, therefore, “simply wrongly decided.” United

States v. Charles, 275 F.3d 468, 470 (5th Cir. 2001)

(Sparks, J., concurring) (arguing that “Galvan-

Rodriguez ... [is] simply wrongly decided”), super-

seded, 301 F.3d 309 (5th Cir. 2002) (en banc). On

January 21, 2009, this Court GVRd three cases in

which the Fifth Circuit held that UUV constitutes a

crime of violence for reconsideration in light of Begay

and Chambers. See United States v. Castillo-Lucio,

256 F. App’x 720 (5th Cir. 2007) (per curiam), vacated,

No. 07-9674 (U.S. Jan. 21, 2009); United States v.

Armendariz-Moreno, 258 F. App’x 666 (5th Cir. 2007)

(per curiam), vacated, No. 07-10061 (U.S. Jan. 21,

2009); United States v. Reyes-Figueroa, 282 F. App’x

330 (5th Cir. 2008) (per curtam), vacated, No. 08-6406

(U.S. Jan. 21, 2009). At a minimum, the Court

should GVR this case as well, because it raises pre-

cisely the same issue as the remanded cases. Alter-

natively, this case presents an ideal opportunity for

the Court to ensure that the Fifth Circuit’s persistent

error is corrected and the entrenched circuit split re-

solved, so that uniformity can be established in this

significant area of federal law without further delay.

The Fifth Circuit’s interpretation of § 16(b) is

firmly entrenched and demonstrably wrong. A prior

offense is a crime of violence pursuant to § 16(b) if,

“bv its nature, [it] involves a substantial risk that

physical force against the person or property of an-

other may be used in the course of committing the

offense.” 18 U.S.C. § 16(b). In determining whether

a prior offense is a crime of violence under § 16(b),

the court must “consider the offense generically, that

is to say, ... examine it in terms of how the law de-

fines the offense and not in terms of how an individ-

ual offender might have committed it on a particular

occasion.” Begay, 128 S. Ct. at 1584; see also Leocal,

543 U.S. at 7 (the language of § 16(b) “requires us to

look at the elements and the nature of the offense of

conviction, rather than to the particular facts relat-

ing to petitioner’s crime’).

Contrary to the Fifth Circuit's conclusion in

Galvan-Rodriguez, the Texas offense of UUV does

not “by its nature” entail a substantial risk that

physical force will be used in committing the offense

and therefore is not a crime of violence under § 16(b).

The Fifth Circuit based its initial determination that

UUV is a crime of violence on the unsubstantiated

assertion that “the unauthorized use of a vehicle ...

carries a substantial risk that the vehicle might

be broken into, ‘stripped,’ or vandalized.” Se.

Rodriguez, 169 F.3d at 219. As the Tenth Cir¢uit

noted, the court “cited no authority and offered little

explanation for [this] blanket statement.” Sanchez-

Garcia, 501 F.3d at 1214. This Court recently

rejected a similarly unsubstantiated assertion of

the potential for violence in Chambers, slip op. at 5

(concluding that the government had provided too

little “empirical information” to support its claim that

failure to report was a violent felony under 18 U.S.C.

§ 924(e)(2)(B)(ii)).

Moreover, even if the Fifth Circuit had relied on

evidentiary support for its assertion that in some

cases the offense of UUV carries a risk that the vehi-

cle might be “broken into, ‘stripped,’ or vandalized,”

the generic offense of UUV in Texas cniminalizes

such a broad range of conduct that it cannot logically

be said to entail, “by its nature,” a substantial risk of

the use of physical force in the commission of the

offense. Indeed, most of the conduct criminalized by

the Texas UUV statute presents no risk at all that

physical force will be used. A person commits UUV

under Texas law if he “intentionally or knowingly

operates another's boat, airplane, or motor-propelled

vehicle without the effective consent of the owner.”

TEX. PENAL CODE § 31.07(a). As the dissent from de-

nial of rehearing en banc points out:

Texas courts have convicted defendants under

the statute for such things as operating a vchicle

beyond the time allotted by the vehicle’s owner,

see Coleman v. Texas, No. 11-06-00155-CR, 2008

WL 97051 (Tex. App. Jan. 10, 2008); Wilborn v.

Texas, No. 12-06-00258-CR, 2007 WL 2381376

(Tex. App. Aug. 22, 2007); Bradford v. Texas, No.

07-02-0237-CR, 2003 WL 21501968 (Tex. App.

Jul. 1, 2003); exchanging money and tickets with

an employee at a car rental company to use vehi-

cles without an authorized rental agreement, see

Roy v. Texas, 161 S.W.3d 30 (Tex. App. 2004);

taking another's kcys and using the vehicle with-

out permission, see Johnson v. Texas, No. 05-92-

00385-CR, 1994 WL 279803 ({[Tex. App.] Jun. 28,

1994); and obtaining possession of a _ vehicle

under false pretenses, see Nance v. Texas, 647

S.W.2d 660 (Tex. App. 1983) (although the court

reversed the conviction based on a separate evi-

dentiary issue, it concluded that the ev.dence

was sufficient to support the [UUV] conviction)

App. 27a n.2.

This Court’s decision in Leocal firmly repudiated

the Fifth Circuit’s conclusion that an unsubstanti-

ated risk of physics] force in a small subset of UUV

cases is sufficient to classify the offense as a crime

of violence. As the Leocal Court made clear, “[t]he

ordinary meaning of th[e] term [‘crime of violence’},

combined with § 16’s emphasis on the use of physical

force ..., suggests a category of violent, active

crimes,” and interpreting this section too broadly

“would blur the distinction between the ‘violent’

crimes Congress sought to distinguish for heightened

punishment and other crimes.” 543 U.S. at 11. The

broad range of conduct criminalized by the Texas

UUV statute cannot plausibly be placed on the “vio-

lent” side of this distinction. See Charles, 275 F.3d at

471 (Sparks, J., concurring) (lamenting that “most

traffic violations have been elevated to crimes of

violence” in the Fifth Circuit) (internal quotation

marks omitted); App. 27a-28a (dissent from denial of

rehearing en banc) (“It is also difficult to see how the

facially innocuous crime of UUV poses a greater risk

of physical force than driving under the influence.”).

Nonetheless, when called upon to reevaluate its con-

clusion that UUV is a crime of violence under § 16(b)

in light of Leocal, the Fifth Circuit declined, stating

baldly and implausibly: “Leocal is fully consistent

with this court’s construction of the Texas UUV Stat-

ute in Galvan-Rodriguez.” Brieva-Perez, 482 F.3d at

361.

In addition to its conclusion that UUV may entail a

break-in or vandalism, the Fifth Circuit’s determina-

tion that UUV constitutes a crime of violence was

also premised on its conjecture about the wide range

of violent acts that might occur after the commission

of the offense. In particular, the court reasoned that

there is a strong probability that the inexperi-

enced 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 vanda*~~m. In fact, when an illegal

alien operates a ve>, le without consent, a strong

probability exists ... 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.

Galvan-Rodriguez, 169 F.3d at 219-20.

This conjecture is both unsubstantiated and irrele-

vant in light of Leocal. In Leocal, this Court made

clear that the fact that an offense may. in some cir-

cumstances, lead to violence or the use of physical

force is not sufficient to elevate the conduct to a

crime of violence under § 16(b). Rather, “[t]he ‘sub-

stantial risk’ in § 16(b) relates to the use of force, not

to the possible effect of a person’s conduct,” Leocal,

543 U.S. at 10 n.7, and “the reckless disregard in

§ 16 relates not to the general conduct or to the pos-

sibility that harm will result from a person’s conduct,

but to the risk that the use of physical force ..

might be required in committing a crime,” td. at 9-10.

Thus, “Leocal repudiated the reasoning in Galvan-

Rodriguez for finding UUV a crime of violence,

namely [the court's] conclusion that conduct that

might occur as a result of using a vehicle without au-

thority poses a ‘substantial risk’ of physical force.”

App. 27a (dissent from denial of rehearing en banc).

This Court’s recent decision in Begay further

undermines the Fifth Circuit’s reasoning in Galvan-

Rodriguez. In Begay, this Court held that DUI did

not constitute a violent felony under the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),

because “statutes that forbid driving under the influ-

ence ... typically do not insist on purposeful, violent,

and aggressive conduct.” 128 S. Ct. at 1586. Not-

withstanding this Court’s guidance in Leocal and

Begay, the Fifth Circuit (both the panel and the en

banc court) rejected petitioner’s claim that Galvan-

Rodriguez was wrongly decided, unnecessarily pro-

longing a stark conflict with its sister circuits.

Indeed, the Fifth Circuit has already considered —

and rejected — the argument that the interpretation

of other “crime of violence” provisions in the U.S.

Code sheds light on the proper interpretation of

§ 16(b). In United States v. Charles, 301 F.3d 309,

314 (5th Cir. 2002) (en banc), that court held that

UUV is not a crime of violence under § 4B1.2(a)(2) of

the U.S. Sentencing Guidelines (U.S.S.G.) because

that provision is limited to offenses that present a

serious potential risk of injury to a person. Subse-

quently, the court declined to apply its holding in

Charles in § 16(b) cases, noting that Charles “does

not extend to §16 crime of violence cases, and

is therefore inapplicable.” Brieva-Perez, 482 F.3d

at 360. According to Brieva-Perez, Charles “limited

Galvan-Rodriguez to its property aspects and to § 16

cases” because “[t]he definition of crime of violence in

§ 4B1.2(a) differs from the § 16 definition.” Jd. at 360

& n.3.

Thus, the Fifth Circuit has consistently declined to

revisit its ten-year-old determination that UUV con-

stitutes a crime of violence, notwithstanding several

intervening cases from this Court providing both the

opportunity and the necessity of doing so. ‘This Court

should grant certiorari to reaffirm its teachings in

Leocal, Begay, and now Chambers — that § 16(b) en-

compasses active, reckless, and truly violent crimes,

not joyriding and failure to return a rental car on

time. Alternatively, the Court may wish to remand

this case to give the Fifth Circuit yet another oppor-

tunity to correct its erroneous interpretation of § 16(b).

Il. THE DECISION BELOW ENTRENCHES

AN ACKNOWLEDGED CONFLICT ON AN

ISSUE OF PRACTICAL IMPORTANCE

Even in the absence of the conflict with this Court’s

prior decisions, this case is independently cert-worthy

because the decision below is in stark conflict with

the decisions of other circuits, both in the specific

analysis of the Texas UUV statute and in the more

general reasoning applied to analogous state statutes

under § 16(b)’s “crime of violence” provision.

A. The Fifth Circuit’s Holding That UUV

Constitutes A Crime Of Violence Under 18

U.S.C. § 16(b) Is In Direct And Irreconcil-

able Conflict With The Tenth Circuit’s

Conclusion To The Contrary

The conflict between the Fifth and Tenth Circuits

is stark and acknowledged. The Fifth Circuit has

repeatedly held that the Texas offense of UUV is a

crime of violence under 18 U.S.C. § 16(b). See supra

pp. 7-13. The Tenth Circuit, in contrast, is as firm

in its conviction that UUV offenses are not crimes

of violence as the Fifth Circuit is that they are. In

Sanchez-Garcia, the Tenth Circuit criticized the

Fifth Circuit’s reasoning and held that the Arizona

equivalent of UUV - unlawful use of a means of

transport, ARIZ. REV. STAT. § 13-1803(A)(1) — is not a

crime of violence under § 16(b). The Sanchez-Garcia

court carefully considered the Fifth Circuit’s decision

in Galvan-Rodriguez and rejected it, concluding

that the Fifth Circuit had “cited no authority and

offered lttle explanation” for its holding, and that

its “rationale has subsequently been rejected by the

Supreme Court.” 501 F.3d at 1214 (citing Leocal, 543

U.S. at 11).

That general conflict between the Fifth and Tenth

Circuits over whether UUV offenses are crimes of

violence became specific to the Texas statute just

one month after the Fifth Circuit denied the petition

for rehearing in this case and thereby reaffirmed its

conclusion that Texas UUV is a crime of violence. In

United States v. Perez-Gutiterrez, No. 07-2129, 2008

WL 5250240 (10th Cir. Dec. 18, 2008), the Tenth Cir-

cuit held that Texas UUV is not a crime of violence.

The Tenth Circuit not only rejected the Fifth Cir-

cuit’s conclusion that the offense of UUV under the

Texas statute constitutes a crime of violence, but also

held that the district court in that case had commit-

ted “plain error” in relying on the Fifth Circuit's

holding to the contrary. /d. at *3.

This conflict is now firmly entrenched. The Fifth

Circuit has considered Leocal and Sanchez-Garcia

and reaffirmed its contention that UUV is a crime of

violence under § 16({b), and the Tenth Circuit has

rejected the Fifth Circuit's conclusion and reasoning

twice. While the issue will continue to arise in each

circuit with increasing frequency — UUV is a crime of

frequent conviction, and § 16(b) is increasingly rele-

vant in the removal of aliens — it is difficult to imag-

ine a scenario in which the conflict would be resolved

without this Court’s intervention.

B. The Fifth Circuit’s Conclusion That Texas

UUV Constitutes A Crime Of Violence

Conflicts With Decisions In Numerous

Circuits That Reject That Classification

For Other Crimes Involving More Risk Of

Violence

In addition to the particularly striking conflict

between the Fifth and Tenth Circuits on the precise

UUV statute at issue in this case, the Fifth Circuit’s

rule directly conflicts with the rationales and deci-

sions in other circuits addressing crimes that appear

to be more “violent” than UUV and holding that they

do not qualify as crimes of violence under 18 U.S.C.

§ 16(b). The Leocal Court explained that, “[iJn con-

struing |[§ 16(b)], we cannot forget that we ultimately

are determining the meaning of the term ‘crime of

violence,” and that interpreting it too broadly “would

blur the distinction between the ‘violent’ crimes Con-

gress sought to distinguish for heightened punish-

ment and other crimes.” 543 U.S. at 11. The Fifth

Circuit’s conclusion that UUV constitutes a crime of

violence makes a mockery of that distinction.

1. Homicide Offenses

Tae Second, Third, Fourth, and Eighth Circuits

have held that certain homicide offenses — those that

do not require that the defendant intentionally or

knowingly used force to kill a person — are not crimes

of violence under § 16(b). The Fourth Circuit in

Bejarano-lU/rrutia v. Gonzales, 413 F.3d 444, 445, 447

(4th Cir. 2005), reasoned that a Virginia conviction

for involuntary manslaughter was not a § 16(b) crime

of violence because “a reckless disregard for human

life is distinguishable from a reckless disregard for

whether force will need to be used,” and the latter

recklessness is necessary to qualify as a crime of

violence under § 16(b).

Similarly, the Second Circuit held in Jobson v.

Ashcroft, 326 F.3d 367, 373 (2d Cir. 2003), that the

New York crime of second-degree manslaughter is

not a crime of violence under § 16(b) because it could

be committed by omission and thus did not invo!ve a

substantial risk of the use of force against a person.

Additionally, the court concluded that § 16(b) requires

that the defendant will “intentionally employ physi-

cal force.” and recklessness would be sufficient for

second-degree manslaughter. Id.

The Third Circuit, in an opinion by then-Judge

Alito, agreed, holding that the New Jersey offense

of vehicular homicide® was not a crime of violence

* The conflict with the Fifth Circuit cases is particularly

striking in the vehicular homicide context. The Fifth Circuit

concluded that a Texas UUV offense qualified as a crime of

violence in large part becausc the Galvan-Rodriguez court saw

a “strong probability” that an “inexperienced or untrustworthy”

offender would “be involved in or will cause a traffic accident,

under § 16(b) because the crime did not require proot

of the “intentional use of actual or threatened force

against another’s person.” Ovyebanji v. Gonzales, 418

F.3d 260, 263-64 (3d Cir. 2005); see id. at 264 (“[t]he

quintessential violent crimes — murder, assault, bat-

tery, rape, etc. — involve the intentional use of actual

or threatened force against another's person”).

Finally, in United States v. Torres-Villalobos, 487

F.3d 607 (8th Cir. 2007), the Eighth Circuit similarly

faced the issue whether manslaughter is a crime

of violence and similarly applied Leocal to hold that

it is not. Unlike the Fifth Circuit, which has re-

affirmed its pre-Leocal holding in the UUV context

notwithstanding this Court's intervening decision,

the Torres-Villalobos court rejected the Eighth Cir-

cuit’s previous holding that manslaughter is a crime

of violence. See‘id. at 616 (holding that Leocal super-

seded United States v. Moore, 38 F.3d 977, 981 (8th

Cir. 1994), and Omar v. INS, 298 F.3d 710, 715-17

(8th Cir. 2002)).

2. Assault and Battery

The Fourth Circuit has recognized that assault and

battery crimes are not crimes of violence under

§ 16(b) when the defendant acts recklessly or negli-

gently, but not intentionally or knowingly, because

§ 16(b) requires that there be a substantial risk that

physical force will be used in the commission of the

offense, and that it is not sufficient that injury is

likely to result from the criminal conduct. Thus, in

resulting ... in personal injuries to innocent victims.” 169 F.3d

at 219. But when the Third Circuit decided a case in which the

offender had tn fact caused a traffic accident and fatally injured

an innocent victim —- the worst-case scenario for Galvan-

Rodriguez — it was still insufficient to trigger the § 16(b) defini-

tion.

Garcia v. Gonzales, 455 F.3d 465, 469 (4th Cir. 2006),

the Fourth Circuit held that a defendant's conviction

for the New York crime of reckless assault in the

second degree was not a § 16(b) crime of violence.

The court, citing Leocal, concluded that § 16(b)

“requires that the substantial risk involved be a

substantial risk that force will be employed as a

means to an end in the commission of the crime, not

merely that reckless conduct could result in injury.”

Id.

3. Unlawful Imprisonment

The Second Circuit held in Dickson v. Ashcroft, 346

F.3d 44, 49 (2d Cir. 2003), that the New York crime

of unlawful imprisonment of a competent adult “will

always” qualify as a crime of violence under § 16.

Specifically, unlawful imprisonment of an adult sat-

isfies § 16(b) because “in any case in which a compe-

tent adult is restrained,” even if by deception, “the

offense will either involve the use of force to effectu-

ate the restraint, or by its nature involve a substan-

tial risk that force may be used.” Jd. at 51. The

court contrasted the unlawful imprisonment of an

adult with the unlawful imprisonment of an incom-

petent person or child under 16 years of age, which it

held was not a § 16 crime of violence because that

crime “may be accomplished by ‘any means whatever,

including acquiescence of the victim, if ... the jcus-

todial parent or institution] has not acquiesced in the

movement or confinement.” Jd. at 51-52 (quoting

statute) (alterations by Dickson court).

4. Arson

The Third Circuit has held that, when a defendant

starts a fire recklessly, it is not a § 16(b) crime of

violence, even if the fire causes personal injury or

property damage, because a crime of violence under

§ 16(b) “must involve a substantial risk that the actor

will intentionally use physical force in committing

his crime.” Tran v. Gonzales, 414 F.3d 464, 467-71

(3d Cir. 2005). The Tran court concluded that the

Pennsylvania crime of reckless burning or exploding

was not a crime of violence because, although the

statute required that the defendant “intentionally”

start a fire, it did not require that the defendant

intentionally use force. Jd. at 468, 472-73.

5. Evading Arrest

The Ninth Circuit has held that the California

crime of evading an officer is not a § 16 crime of

violence because the mens rea for evading an officer

is recklessness and the Ninth Circuit had previously

held that § 16(a) and (b) require “more than negli-

gent or reckless conduct.” Penuliar v. Mukasey, 528

F.3d 603, 609 (9th Cir. 2008).

: <«z¢ & & ®

In numerous other analogous statutory contexts,

therefore, other courts of appeals have rejected the

reasoning used by the Fifth Circuit below to justify

UUV as a crime of violence. Both in result and in

reasoning, a square and deep conflict exists that this

Court should resolve.

lil. WHETHER UNAUTHORIZED USE OF A

VEHICLE CONSTITUTES A CRIME OF

VIOLENCE IS A FREQUENTLY RECUR-

RING ISSUE OF SIGNIFICANT IMPOR-

TANCE

A. The “Crime Of Violence” Definition Recurs

In Numerous Statutes

The definition of “crime of violence” in 18 U.S.C.

§ 16 is incorporated by reference into a wide variety

of statutory provisions in both the immigration and

the criminal contexts, and the enduring disagree-

ment about its application to the common offense of

UUV undermines the uniform application of federal

statutes in many contexts, including immigration,

sentencing, and federal criminal law.

In Leocal, this Court explicitly noted the broad

importance of § 16 in a range of different contexts:

[Section 16] was enacted as part of the Compre-

hensive Crime Control Act of 1984 .... Congress

employed the term “crime of violence” in numer-

ous places in the Act .... Congress therefore

provided in § 16 a general definition of the term

“crime of violence” to be used throughout the Act.

Section 16 has since been incorporated into a

variety of statutory provisions, both criminal and

noncriminal.

543 U.S. at 6-7 (citations omitted). Several examples

of § 16’s broad importance were cited in the text of

the opinion, td. at 6, and in a footnote, id. at 7 n.4.

Other examples could just as easily have been given.®

At the same time, most states have criminalized

the unauthorized use of a motor vehicle in statutes

that are either identical to or have the same funda-

® See, e.g., 8 U.S.C. § 1227(a)(2)(E)(i) (deportation of an alien

“convicted of a crime of domestic violence.” which is defined by

reference to § 16). Several provisions in the Sentencing Guide-

lines similarly turn on § 16. See, e.g... U.S.S.G. § 21.1.2(b)(1)(C)

(eight-level enhancement for prior conviction for an “aggravated

felony.” which includes § 16 crimes of violence): see also, e.g..,

Sanchez Garcia, 501 F.3d at 1210 (explaining application of

§ 2L1.2(b)(1)(C)).. Decisions under § 16 are also relevant to

inform the analysis in cases arising under the “violent felony”

definition in the ACCA’s residual clause, 18 U.S.C. § 924(e)(1).

See Chambers, slip op. at 3 & n.2 (Alito, J., concurring) (noting

that “§ 16(b) ... closely resembles ACCA’s residual clause’).

menta! structure as the Arizona and ‘Texas statutes.‘

Thus, the interaction of a UUV offense and the appli-

cation of § 16(b) is likely to recur frequently, in many

combinations and in many jurisdictions.

The enduring split between the Fifth and Tenth

Circuits causes untenable, disparate results for simi-

larly situated offenders subject to § 16(b) depending

on the state where their conviction occurs or their

“ See, e.g., ALA. CODE § 13A-8-11(a); ARK. CODE ANN. § 5-36-

108; CAL. VEH. CODE § 10851 (“Theft and unlawful driving or

taking of a vehicle”); DEL. CODE ANN. tit. 11. § 853; D.C. CODE

§ 22-3215: HAW. REv. STAT. § 708-836 (“Unauthorized control of

‘propelled vehicle”); Ky. REV. STAT. ANN. § 514.100 (“Unauthor-

ized use of automobile or other propelled vehicle”); LA. REV.

STAT. ANN. § 14:68.4; ME. REV. STAT. ANN. tit. 17-A, § 360(A)

(“Unauthorized use of property” including vehicles); MD. CODE

ANN., CRIM. LAW § 7-203(a)(1) (“Unauthorized removal of prop-

erty” including vehicles); MASS. GEN. LAWS ANN. ch. ©0, § 24

(including “unauthorized driving”); MICH. COMP. LAWS ANN.

§ 750.414 (Unauthorized taking or use, without intent to steal,

of motor vehicle”); MONT. CODE ANN. § 45-6-308; NrB. REV.

STAT. § 28-516 (‘Unauthorized use of propelled vehicle”); N.H.

REV. STAT. ANN. § 634:3 (‘Unauthorized Use of Propelled Vehi-

cle or Animal”); N.Y. PENAL LAW § 165.05 (“Unauthorized use of

a vehicle in the third degree”); N.C. GEN. STAT. ANN. § 14-72.2

(“Unauthorized use of a motor-propelled conveyance”); N.D.

CENT. CODE § 12.1-23-06; OHIO REV. CODE ANN. § 2913.03;

OKLA. STAT. ANN. tit. 47, § 4-102 (‘Unauthorized use of vehicle

or implement of husbandry”); OR. REV. STAT. ANN. § 164.135;

18 PA. CONS. STAT. ANN. § 3928 (“Unauthorized use of auto-

mobiles and other vehicles”); S.D. CODIFIED LAWS § 22-30A-12

(“Unauthorized operation of vehicle or vessel as misdemeanor’);

TENN. CODE ANN. § 39-14-106 (“Motor vehicles: intent; joy-

riding’); UTAH CODE ANN. § 41-1la-1314 (“Unauthorized control

for extended time”); V.1. CODE ANN. tit. 14, § 69-1382; VA. CODE

ANN. § 18.2-102 (“Unauthorized use of animal, aircraft, vehicle

or boat: consent: accessories or accomplices’); WASH. REV. CODE

ANN. § 9A.56.070 (“Taking motor vehicle without permission in

the first degree”); W. VA. CODE ANN. § 17A-8-4 (unlawful taking

of vehicle”); WYO. STAT. ANN. § 31-11-102.

removal proceedings are initiated. Such disparate

treatment significantly undermines the strong fed-

eral interest in the uniform enforcement of our im-

migration and criminal laws. Moreover, this lack of

consistency is especially problematic in the immigra-

tion context, as a result of the discretion enjoyed by

the government over the place of detention and the

venue for removal proceedings for aliens subject to

removal or deportation. See infra pp. 23-25.

B. Resolving The Circuit Split Is Of Excep-

tional Public Importance For Ensuring

The Uniform National Application Of

Immigration Laws

The importance of uniformity in the immigration

context is constitutional in origin. See Art. I, § 8, cl.

4 (conferring on Congress the power to “establish an

uniform Rule of Naturalization”). Congress has long

recognized the importance of uniformity 1n enforcing

the immigration laws. See, e.g., Immigration Reform

and Control Act of 1986, Pub. L. No. 99-603, § 115(1),

100 Stat. 3359, 3384 (“It is the sense of the Congress

that ... the immigration laws of the United States

should be enforced vigorously and uniformly.”). And

this Court has long recognized the “nation’s need

to speak with one voice in immigration matters.”

Zavydas v. Davis, 533 U.S. 678, 700 (2001) Ginternal

quotation marks omitted); see also, e.g.. Graham uv.

Richardson, 403 U.S. 365, 382-83 (1971) (asserting

the constitutional importance of uniformity in our

immigration laws). As the Seventh Circuit has

observed, “[njational uniformity in the immigration

and naturalization laws is paramount: rarely is the

vision of a unitary nation so pronounced as in the

laws that determine who may cross our national

borders and who may become a citizen.” Rosendo-

Ramirez v. INS, 32 F.3d 1085, 1091 (7th Cir. 1994).

The Fifth Circuit’s prominent role as a vital center

for immigration affairs renders its errant interpreta-

tion of § 16(b) especially problematic. The San Anto-

nio, Texas office of U.S. Immigration and Customs

Enforcement (ICE) deported a record 53,370 people

from South and Central Texas in the 12 months

ending in November 2008. See Juan Castillo, Depor-

tations from Central and South Texas Hit Record,

Austin-American Statesman, Nov. 7, 2008, at B1.

That number was second only to the Phoenix office.

See id. In fact, for the 2007 fiscal year, immigration

courts in the Fifth Circuit accounted for more than

21% of the completed in-court proceedings in the

entire country. See U.S. Dep't of Justice, FY 2007

Statistical Year Book, at B6, ‘Table 2A (Apr. 2008),

available at http://www.usdo).gov/eoir/statspub/fy

O7syb.pdf. (More than 97% of immigration court

proceedings are removals. See id. at C3, Table 3.)

Only the immigration courts in the Ninth Circuit

surpass the Fifth Circuit in numbers of completed

proceedings.

The Fifth Circuit’s central role in removal proceed-

ings will only increase. As part of a “huge prison

building and contracting campaign” to increase the

number of aliens it can detain, ICE has recently

added 6,700 new immigration detention beds in a

chain of facilities in South Texas. See Spencer

S. Hsu & Sylvia Moreno, Border Policy’s Success

Strains Resources: Tent City in Texas Among Immt-

grant Holding Sites Drawing Criticism, Wash. Post,

Feb. 2, 2007, at Al.

Moreover, ICE has substantial discretion regarding

where to detain and process aliens. In fact, many

of the new detention facilities in South Texas are

housing immigrants from areas across the country

where detention facilities are in short supply or

overcrowded. See, e.g., id. (explaining that “large

numbers of tmmigrants have been transferred from

Boston, New York, New Jersey and Florida”); Dianne

Solis & Alejandro Martinez, Immigration Agents

Arrest Nearly 300 at Pilgrim’s Pride Plants, Dallas

Morning News, Apr. 17, 2008, at 1A (noting that

“many of the detainees [arrested at a leather goods

factory in New Bedford, Massachusetts] were taken

to a South Texas detention center’).

In a legal environment in which the substantive

law differs from circuit to circuit, the government’s

unilateral control over the place of detention, and

thus the forum, is particularly problematic. Arrests

in one circuit followed by a transfer to another are

already common. In Garcia v. Gonzales, for example,

DHS “arrested Garcia in New York,” where he had

lived for many years, then “transferred [him] to Vir-

ginia due to lack of detention space in New York.”

455 F.3d at 467. His case then came up through the

Fourth Circuit, which treated the case as governed

by its law, even though all of Garcia’s contacts

appear to have been with the Second Circuit. The

Garcia transfer may have had no forum-shopping

motive in fact. At the time of Garcia’s arrest, how-

ever, the Second Circuit had already decided Jobson

(see supra p. 16), which strongly supported the argu-

ment that Garcia’s prior conviction was not for a

crime of violence, while the Fourth Circuit had not

yet addressed that issue. An enduring circuit split

that provides the government with the unilateral

opportunity to choose the substantive law that will

apply to aliens it seeks to remove from this country is

especially untenable.

C. Resolving The Circuit Split Is Of Excep-

tional Public Importance Not Only In The

Immigration Context But Also For The

Uniform National Application Of Federal

Criminal Laws

Over the past eight years, prosecutions and convic-

tions for immigration violations have soared. See,

e.g., Dianne Solis, Immigration Prosecutions Surge

Under Bush’s Watch, Dallas Morning News, Jan. 13,

2009, at 1A. In September 2008 alone, illegal reentry

(8 U.S.C. § 1326) was the lead criminal charge for

both prosecutions and convictions in all of the U.S.

district courts. See TRAC Reports, Inc., Prosecutions

for September 2008, available at http://trac.syr.edu/

tracreports/bulletins/overall/monthlysep08/fil/ (prose-

cutions for September 2008); TRAC Reports, Inc.,

Convictions for September 2008, available at http://

trac.syr.edu/tracreports/bulletins/overall/monthly

sep08/gui/ (convictions for September 2008). Given

the significant enhancement authorized in the Sen-

tencing Guidelines for an alien convicted of illegal

reentry after a prior conviction of an aggravated

felony (defined by reference to § 16(b)), the Fifth

Circuit’s erroneous interpretation of § 16(b) substan-

tially undermines the federal interest in the fair and

uniform application of federal criminal law and the

Sentencing Guidelines.

Many federal laws incorporate § 16 in the criminal

context, either as a factor that enhances a defen-

dants sentence or in the definition of a substantive

offense. Outside of removal proceedings, the conse-

quences ef the Fifth Circuit’s erroneous interpreta-

tion of that provision are most vividly demonstrated

in the context of sentencing pursuant to U.S.S.G.

§ 2L1.2. The Guidelines increase the base offense

level for illegal reentry from 8 to 16. For defendants

whose criminal history is low, such as Level 1, their

sentences jump from 0-6 months to 21-27 months.

Indeed, when the Tenth Circuit in Perez-Gutierrez

reversed the district court’s conclusion that Texas

UUV constituted a crime of violence under § 16(b),

the defendant’s sentencing range fell from 30-37

months to 18-24 months. If his case had arisen in

the Fifth Circuit, the enhanced sentencing range

would have applied.

Applying substantially different prison sentences

to defendants based solely on geographic fortuity due

to the courts’ disparate definition of a § 16(b) crime of

violence is not a factor countenanced by the federal

criminal system. This Court’s intervention is neces-

sary to ensure uniformity in the application of crim-

inal laws.

IV. THIS CASE PROVIDES AN IDEAL VEHI-

CLE FOR RESOLVING THE ENTRENCHED

CONFLICT AMONG THE LOWER COURTS

This case provides an exceptionally good vehicle

to resolve the acknowledged conflict between the

Fifth Circuit and the other courts of appeals that

have considered the scope of the “crime of violence”

definition under § 16(b). The relevant facts are un-

disputed. Petitioner does not deny that he was con-

victed under Texas law for the unauthorized use of a

vehicle. The only, dispute is over the legal question

whether that offense is a § 16(b) “crime of violence.”

No extraneous issues or alternative holdings would

distract this Court from resolving the question pre-

sented. All other issues dropped out of the case be-

fore it reached the Fifth Circuit. It is equally clear

that the entire controversy turns on that one issue.

Since his UUV conviction 23 years ago, petitioner has

had a spotless record. But for that one conviction,

no grounds exist for his removal from the United

States.

This Court has recently vacated three Fifth Circuit

decisions on precisely this issue and remanded the

cases for further consideration in light of Chambers,

see Reyes-Figueroa, or in light of Begay and Cham-

bers, see Armendariz-Moreno; Castillo-Lucio. At the

very least, the same course would be appropriate

here. Because the Fifth Circuit has already declined

several opportunities to bring its jurisprudence into

line with this Court’s teaching, however, a GVR in

this case may simply postpone the inevitable need to

resolve a frequently recurring issue. To the extent

that this Court was persuaded by the government's

argument that Reyes-Figueroa, Armendariz-Moreno,

and Castillo-Lucio were poor vehicles to resolve the

inter-circuit conflict,® this case avoids those problems

and offers a much better vehicle. The Court may

therefore prefer to grant certiorari now and avail

itself of the opportunity to resolve the issue once and

for all.

“ See, e.g., Bnef for the United States in Opposition at 9-10,

Castillo-Lucio v. United States, No. 07-9674 (U.S. filed May 9,

2008) (arguing that “[t]his Court generally does not review

decisions interpreting and applying the [U.S. Sentencing]

Guidelines, because the Sentencing Commission can amend the

Guidelines to eliminate a conflict or to correct an error,” and

noting that “the Guidelines are now advisory’).

CONCLUSION

The petition for a writ of certiorari should be

granted; or, 1n the alternative, the petition should

be granted, the judgment below vacated, and the

ease remanded for further consideration in light of

Chambers v, United States, No. 06-11206, 2009 WL

63882 (U.S. Jan. 13, 2009).

Respectfully submitted,

MICHAEL F. STURLEY DAVID C. FREDERICK

LYNN E. BLAIS Counsel of Record

727 East Dean Keeton St. KELLOGG, HUBER, HANSEN,

Austin, Texas 78705 TODD, EVANS & FIGEL,

(512) 232-1350 Oe FE On

1615 M Street, N.W.

JAVIER N. MALDONADO Suite 400

110 Broadway St. Washington, D.C. 20036

Suite 510 (202) 326-7900

San Antonio, Texas 78205

(210) 277-1603

February 2, 2009

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Fifth Circuit, Serna-Guerra v. Mukasey,

PU, GT -S Geer BD, BED oncensnvevccecccccccoscccascccscscss la

Order of the Board of Immigration Appeals, /n

re Jose Angel Serna-Guerra, File A388 099 578

(San Antonio, Texas) (July 31, 2007)...................... lla

Order of the Board of Immigration Appeals, /n

re Jose Angel Serna-Guerra, File A388 099 578

(San Antonio, Texas) (July 24, 2006)...................... l3a

Oral Decision of the Immigration Judge, Jn re

Jose Angel Serna-Guerra, Case No. A38-099-578

(San Antonio, Texas) (Feb. 4, 2005)................. peli 16a

Order of the United States Court of Appeals

for the Fifth Circuit Denying Rehearing and

Rehearing En Banc, Serna-Guerra v. Mukasey,

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Statutory Provisions Involved:

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60634

JOSE ANGEL SERNA-GUERRA,

Petitioner.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals

[Filed May 30, 2008]

Before JOLLY*, DENNIS, and PRADO, Circuit

Judges.

PER CURIAM:

The sole issue presented in this petition for review

is whether the Board of Immigration Appeals (“BIA”)

erred in concluding that a Texas conviction for the

unauthorized use of a vehicle (““UUV’”), Tex. Pen. Code

Judge Jolly concurs only in the order granting the motion

for summary affirmance and denying as moot the alternative

motion for an extension of time to file a responsive pleading

*“ Pursuant to 51TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

§ 31.07, constitutes an aggravated felony.' Because

this issue is foreclosed by Circuit precedent, see

Brieva-Perez v. Gonzales, 482 F.3d 356 (Sth Cir.

2007), United States v. Galvan-Rodriguez, 169 F.3d

217 (5th Cir. 1999), we grant the motion for sum-

mary affirmance, thereby denying as moot the alter-

native motion for an extension of time to file a re-

sponsive pleading. For the following reasons, how-

ever, we urge and recommend that that precedent

should be reconsidered and overruled by our en banc

court.

“Any alen who is convicted of an aggravated felony

at any time after admission is deportable.” 8 U.S.C.

§ 1227(a)(2)(A)(ii). Section 101(a)(43) of the Immi-

gration and Nationality Act defines “aggravated

felony” to include, inter alia, “a crime of violence (as

defined in section 16 of title 18, but not including

a purely political offense) for which the term of

imprisonment is at least one year.” 8 US.C.

§ 1101(a)(43)(F). Title 18 of the United States Code,

Section 16, in turn, defines the phrase “crime of

violence” to mean, inter alia, “any other offense that

is a felony and that, by its nature, involves a sub-

stantial 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).

This court first addressed this issue in Galvan-

Rodriguez. in which a panel of this court held that

“the offense of unauthorized use of motor vehicle is a

crime of violence within the intendment of 18 U.S.C.

' Tex. Pen. Code § 31.07(a) provides that “[a] person commits

an offense if he intentionally or knowingly operates another's

boat, airplane, or motor-propelled vehicle without the effective

consent of the owner.”

§ 16.” 169 F.3d at 219.° This court first noted that

the phrase “substantial risk,” as used in 18 U.S.C.

§ 16(b), does not necessarily mean 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.” Jd. (quoting

United States v. Rodriguez-Guzman, 56 F.3d 18, 20

(5th Cir. 1995)). This court then summarily con-

cluded that “[jJust as burglary of a vehicle involves

a substantia] 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 be-

come involved in an accident, resulting not only in

damage to the vehicle and other property, but in per-

sonal injuries to innocent victims as well.” Jd.* This

2 In Galvan-Rodriguez, this court reached the definition of

“crime of violence” found in Section 16(b) through a different

route. At the time that case was decided, Section 2L1.2(b)(2) of

the Guidelines required the district court to enhance a defen-

dant’s sentence “[i]f the defendant previously was deported, or

unlawfully remained in the United States, after ... a conviction

for an aggravated felony” and application note seven defined

“aggravated felony” to mean “any crime of violence” as defined

in 18 U.S.C. § 16 (not including a purely political offense) “for

which the term of imprisonment (regardless of any suspension

of such imprisonment) is at least five years.” United States

Sentencing Commission, Guidelines Manual, § 21.1.2(b)(2) &

emt. 7 (Nov. 1996).

* The comparison between burglary of a vehicle and UUV is

dubious. The former requires as an element of the offense that

the perpetrator “breaks into or enters the vehicle.” whereas the

latter has no such element; the perpetrator simply “operates .. .

ithe] vehicle without effective consent of the owner.” Compare

Tex. Pen. Code § 30.04 with Tex. Pen. Code § 31.07.

court recognized that “the unauthorized use of a

vehicle will not always result in physical force to per-

sons or property, as, for example, when a child takes

the family car ‘joyriding’ without parental consent.”

Id. Nonetheless, this court continued:

[H]owever, there is a strong probability that the

inexperienced or untrustworthy driver who has

no pride of ownership in the vehicle will be in-

volved 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 con-

sent, 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.

Id. at 219-20.4

In United States v. Jackson, 220 F.3d 635, 639 (5th

Cir. 2000), another panel of this court drew on the

language in Galvan-Rodriguez that UUV involves a

substantial risk that the vehicle might be involved in

an accident to hold that UUV is a crime of violence

under Section 4B1.2(a) of the Guidelines. The defi-

nition of a “crime of violence” in § 4B1.2(a) differs

shghtly from the § 16(b) definition and provides that

1 The Supreme Court has subsequently rejected this entire

rationale for finding a crime of violence under § 16(b). See

Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (“Interpreting § 16 to

encompass accidental or negligent conduct would blur the dis-

tinction between the ‘violent’ crimes Congress sought to distin-

guish for heightened punishment and other crimes.”); 1d. at 10

n.7 (“The ‘substantial risk’ in § 16(b) relates to the use of force,

not to the possible effect of a person's conduct.”); see also Rami

rez uv. Ashcroft, 361 F. Supp. 2d 650, 655-56 (S.D. Tex. 2005)

(noting that Leocal repudiated this rational for finding a crime

of violence under § 16(b)).

“any offense under federal or state law, punishable

by imprisonment for a term exceeding one year, 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, involves use of explosives, or otherwise

involves conduct that presents a scrious potential

risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a). In short, § 16(b) focuses on whether there

is a substantial risk that the crime will involve

physical force against the person or property;

§ 4B1.2(a) focuses solely on whether there is a seri-

ous potential risk of physical injury to another per-

son. In United States v. Charles, 301 F.3d 309, 314

(5th Cir. 2002) (en banc), this court clarified that

simple motor vehicle theft under Texas law does not

constitute a crime of violence under § 4B1.2(a) be-

cause although the perpetrator’s conduct presents a

risk of injury to property, t.e., the automobile, it does

not present a serious potential risk of physical injury

to another person. Thus, this court explicitly over-

ruled Jackson and limited Galvan-Rodriguez to its

property aspects and to § 16 cases. Id.

This court next addressed this issue in Brieva-

Perez, in which another panel of this court found

itself bound by Galvan-Rodriguez and concluded that

the defendant's UUV conviction constitutes a crime

of violence even though his conviction was for joy-

riding and involved no actual use of physical force.

482 F.3d at 360-61.

Subsequent to this court’s decision in Brieva-Perez,

however, the Tenth Circuit has harshly criticized

our jurisprudence in this area. See United States v.

Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007).5 In

that case, the Tenth Circuit addressed the issue of

whether the unlawful use of means of transportation

(““UUMT?”). as defined under Arizona law, is a crime

of violence under § 16.© The court first noted that

“[I]ike any offense involving the unauthorized taking

of property, it is clear there is some chance that de-

structive or violent force might be employed in the

commission of UUMT when a person initially takes

unauthorized control over a means of transporta-

tion.” 501 F.3d at 1212. The court continued, how-

ever, that such risks are not “substantial” because

UUMT “encompasses a broad range of conduct that

does not present any risk of such force being used”

such as driving a rental vehicle past the expiration of

the rental agreement, borrowing a car that he or she

” A recent law review article has likewise criticized our juris-

prudence in this area. See Heather Harrison Volik, Driving

Down the Wrong Road: The Fifth Circuit’s Definition of Un-

authorized Use of a Motor Vehicle as a Crime of Violence in the

Immigration Context, 39 St. Mary’s L. J. 149, 155 (2007) (“Defin-

ing UUMV as a crime of violence is at odds with Leocal’s guid-

ing principles and with the reasoning of the criminal and immi-

gration statutes at issue. The end result of the Fifth Circuit's

error is lifetime bans of noncitizens for conduct that has none of

the characteristics of a crime of violence.”). Moreover, one dis-

trict court judge sitting on this court by designation concluded

that Galvan-Rodriguez was wrongly decided and lamented that

“most traffic violations have been elevated to crimes of vielence

in the Fifth Circuit.”. United States v. Charles, 275 F.3d 468,

470 (5th Cir. 2001) (Sparks. J.. concurring), vacated and re-

heard en banc by 301 F.3d 309 (5th Cir. 2002).

commits felony UUMT when “[a] person ..., without intent

permanently to deprive ... {k]nowingly takes unauthorized con-

trol over another's means of transportation.”

knows is stolen, or taking another's keys and going

joyriding. ld.

Recognizing that this court reached the opposite

conclusion under Texas law in Galvan-Rodriguez, the

Tenth Circuit stated, “the Galvan-Rodriguez court

cited no authority and offered little explanation for

its blanket statement that the risk of a vehicle being

broken into, ‘stripped,’ and vandalized is indeed sub-

stantial.” Jd. at 1214 (interna] quotations omitted).

The court further noted that the Supreme Court in

Leocal rejected much of our rationale in Galvan-

Rodriguez. Id. The court also analyzed the legis-

lative history of § 16(b) to conclude that Congress

intended the types of crimes covered under that sec-

tion to be similar to the same categories of offenses

described in the District of Columbia Code as “dan-

gerous’ and “crimes of violence.” Jd. Such crimes

include murder, rape, robbery, assorted burglary

crimes, assault with a dangerous weapon, and the

taking of property by force. Jd. The court concluded

that “logic and common sense indicate that Congress

did not intend to punish a person who was dilatory in

returning a borrowed car or went joyriding in the

same manner as a convicted murderer, rapist, rob-

ber, or burglar.” Jd.

The Supreme Court has emphasized that when

construing § 16, “we cannot forget that we are de-

termining the meaning of the term ‘crime of violence.’

... [and that t]he ordinary meaning of this term, .

suggests a category of violent, active crimes.” Leocal,

543 U.S. at 11. Here, like the Arizona statute at

issue in Sanchez-Garcia, the Texas UUV statute

criminalizes a broad range of conduct that does not

present any risk of physical force being used. For

example, Texas courts have convicted defendants

under this statute for such things as operating a

vehicle beyond the time allotted by the vehicle's

owner, see Coleman v. Texas, No. 11-06-00155-CR,

2008 WL 97051 (Tex. Ct. App. Jan. 10, 2008);

Wilborn v. Texas, No. 12-06-00258-CR, 2007 WL

2381376 (Tex. Ct. App. Aug. 22, 2007); Bradford v.

Texas, No. 07-02-0237-CR, 2003 WL 21501968 (Tex.

Ct. App. Jul. 1, 2003); exchanging money and tickets

with an employee at a car rental company to use

vehicles without an authorized rental agreement, see

Roy v. Texas, 161 S.W.3d 30 (Tex. Ct. App. 2004);

taking another’s keys and using the vehicle without

permission, see Johnson v. Texas, No. 05-92-00385-

CR, 1994 WL 279803 (Tex. Ct. App. Jun. 238, 1994):

and obtaining possession of a vehicle under false pre-

tenses, see Nance v. Texas, 647 S.W.2d 660 (Tex. Ct.

App. 1983) (although the court reversed the convic-

tion based on a separate evidentiary issue, it con-

cluded that the evidence was sufficient to support the

UUV conviction); none of which present any risk of

physical force being used. We agree with the Tenth

Circuit that it defies common sense to treat such per-

sons in the same manner as convicted murderers,

rapists, robbers, or burglars for deportation pur-

poses.’

* To the extent that this issue even presents a close call, the

Supreme Court and this Circuit have consistently recognized

“the longstanding principle of construing any lingering ambi-

guities in deportation statutes in favor of the alien.” JNS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987): see also INS v, St.

Cyr, 533 U.S. 289, 320 (2001) (same); INS v. Errico, 385 U.S.

214, 225 (1966) (‘([S]ince the stakes are considerable for the

individual, we will not assume that Congress meant to trench

on his freedom beyond that which is required by the narrowest

of several possible meanings of the words used.’”) (quoting

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)); Martinez v.

“Because the Fifth Circuit is the only circuit to find

[UUV] to be a crime of violence, a troubling scenario

has arisen where affected immigration laws are not

being applied consistently.” Volik, 39 St. Mary's L. J.

at 176.8 The end result is that non-citizens are being

deported for life and families are being separated for

committing a crime that does not have any of the

hallmarks of a crime of violence. At this point, how-

ever, we recognize that Petitioner’s arguments are

foreclosed by Circuit precedent and it is well-settled

that one panel of this court cannot overrule the

decision of another panel. See Lowrey v. Tex. A & M

Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). Thus,

Mukasey, 519 F.3d 532, 544 (5th Cir. 2008) (quoting Cardoza-

Fonseca and explaining that “[t]his canon of construction, com-

parable to the rule of lenity in criminal cases, is based on the

drastic nature of removal”); Banda-Ortiz v. Gonzales, 445 F.3d

387, 396 (5th Cir. 2006) (Smith, J., dissenting) (“Though the

majority finds this weight of authority insufficient, it might at

least, out of comity, acknowledge the merit of the competing

pusition by applying the ‘longstanding principle of construing

any lingering ambiguities in deportation statutes in favor of the

alien.””).

8 In addition to the Tenth Circuit, our decision in Galvan-

Rodriguez is also arguably at odds with the Ninth Circuit. In

Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008), the court

held that UUV is not a crime of violence as a theft offense under

11 U.S.C. § 1101(a)(43)(G) and in Sareang Ye v. INS, 214 F.3d

1128 (9th Cir. 2000), the court held that vehicular burglary

is not a crime of violence under 11 U.S.C. § 1101(a)(43)(F) and

§ 16. See also Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir.

2000) (holding that vehicular burglary not a crime of violence

under categorical approach). If the Ninth Circuit believes that

breaking or entering into a vehicle does not carry with it a sub-

stantial risk that physical force may be used against the vehi-

cle, it most likely would conclude that the simple unauthorized

use of a vehicle also does not constitute a crime of violence

under 11 U.S.C. § 1101(a)(43)(F) and § 16.

10a

although we grant the motion for summary affir-

mance, thereby denying as moot the alternative

motion for an extension of time to file a responsive

pleading, we urge and recommend that that prece-

dent should be reconsidered and overruled by our en

banc court.

The petition for review is DENIED.

lla

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A388 099 578 — San Antonio, TX

Date: July 31, 2007

In re: JOSE ANGEL SERNA-GUERRA

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Anne D. Monahan, Esquire

ON BEHALF OF DHS:

Graciela G. Garza

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)Gii), I&N Act [8 U.S.C.

§ 1227(a)(2)(A)Qaiil)] — Convicted of aggravated

felony

APPLICATION: Watver under section 212(c):

cancellation of removal

ORDER:

PER CURIAM. This case was last before us on

July 24, 2006, when we dismissed an appeal from

an Immigration Judge’s decision dated February 4,

2005. The case is again before us on stipulated

remand from the United States Court of Appeals for

12a

the Fifth Circuit. The respondent filed a timely brief.

The motion of the Department of Homeland Security

to accept an untimely brief is denied. The appeal is

dismissed.

The issues presented in this appeal include the

question of whether a felony conviction for un-

authorized use of a motor vehicle in violation of

Texas law is a crime of violence, rendering the

respondent deportable as an aggravated felon and

ineligible for a waiver under section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(c).

In a recent decision, Brieva-Perez v. Gonzales, 482

F.3d 356 (5th Cir. 2007), the United States Court of

Appeals for the Fifth Circuit answered this question

in the positive. The court held that a felony convic-

tion for unauthorized use of a motor vehicle in viola-

tion of Texas law constituted a “crime of violence”

and was thus a deportable felony under the Immigra-

tion and Nationality Act. In hght of this holding, we

must conclude that the respondent’s felony conviction

for unauthorized use of a motor vehicle in violation of

Texas law constitutes an aggravated felony crime of

violence. Inasmuch as there is no comparable ground

of inadmissibility, the respondent is not eligible for a

waiver under former section 212(c) of the Act. See Vo

v. Gonzales, 482 F.3d 363 (5th Cir. 2007).

In light of the foregoing, we see no basis on which

to sustain the respondent’s appeal, and the other

issues before us are consequently moot. Therefore,

the respondent’s appeal is dismissed.

/s/ NEIL P. MILLER

FOR THE BOARD

l3a

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A38 099 578 — San Antonio

Date: July 24, 2006

In re: JOSE ANGEL SERNA-GUERRA

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Anne D. Monahan, Esquire

ON BEHALF OF SERVICE:

Graciela G. Garza

Assistant Chief Counsel

CHARGE:

Notice: See. 237(a)(2)(A)(fiil), I&N Act [8 U.S.C.

§ 1227(a)(2)(A)(fiil)]} — Convicted of aggravated

felony

ORDER:

PER CURIAM. The respondent has appealed from

a February 4, 2005 removal order which was issued

after an Immigration Judge determined he had been

convicted of an aggravated felony which constituted

a theft offense and a crime of violence. The Immigra-

tion Judge pretermitted the respondent’s application

for relief under section 212(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(c). The DHS

l4a

(Department of Homeland Security) opposes the

appeal. The appeal is dismissed.

The record included a conviction record indicating

that the respondent had been convicted tn a Texas

state court for the state felony offense of unauthor-

ized use of a motor vehicle, a penalty for which he

was given a suspended sentence of 5 years impris-

onment, with 5 years probation. See Exh. 7. This

is an effective conviction for immigration purposes.

The respondent pled guilty and was sentenced to

5 years imprisonment; this is sufficient to constitute

a conviction. See section 101(a)(48)(A) of the Act,

8 U.S.C. § 1101(a)(48)(A), which reads:

The term conviction means, with respect to an

alien, a formal judgment of guilt of the alien en-

tered by a court or, if adjudication of guilt has

been withheld, where

(i) a judge or jury has found the alien guilty or

the alien has entered a plea of guilty or nolo con-

tendere or has admitted sufficient facts to war-

rant a finding of guilt, and

(11) the judge has ordered some form of punish-

ment, penalty, or restraint on the alien's liberty

to be imposed.

Further, we have consistently held that, for pur-

poses of immigration law, convictions vacated be-

cause of post-conviction events such as rehabilitation

significantly differ from those convictions which are

vacated because of an underlying defect in the con-

viction. Matter of Pickering, 23 I&N Dec. 621 (BIA

2003); Matter of Roldan, 22 I&N Dec. 512 (BIA 1999).

The respondent does not argue that his conviction

was vacated because of an underlying defect in the

conviction.

loa

The respondent argues that he may have been con-

victed of an offense, but could not have been con-

victed of a felony offense because a deferred adjudica-

tion can only result in community supervision. This

argument is not supported by the cited case, United

States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir.

2005). That case addresses the question of whether

an offense is punishable as a felony, not the question

of whether a deferred adjudication obviates the pos-

sibility of the punishment of imprisonment.

Pursuant to relevant precedents of the United

States Court of Appeals for the Fifth Circuit, un-

authorized use of a motor vehicle is categorically

considered to be a crime of violence for immigration

purposes. See United States v. Chapa-Garza, 243

F.3d 921, 927 (5th Cir. 2001), citing United States v.

Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999);

see also Matter of Brieva, 23 I&N Dec. 766, 767-770

(BIA 2005).

As the respondent is deportable under a ground

(namely, a crime of violence constituting an aggra-

vated felony) that does not have a statutory counter-

part in section 212 of the Act, he is not eligible for a

waiver of inadmissibility under section 212(c). See

Matter of Brieva, supra, at 770-773; see also Matter of

Blake, 23 1&N Dec. 722 (BLA 2005).

The appeal is dismissed.

/s/ LAURIS. FILPPU

FOR THE BOARD

16a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

San Antonio, Texas

File A 38 099 578 February 4, 2005

In the Matter of

JOSE ANGEL SERNA GUERRA, )

Respondent

IN REMOVAL PROCEEDINGS

Base City: Immigration Court, 800 Dolorosa Street,

Suite 300, San Antonio, Texas 78207.

Court Docket: San Antonio, non-detained.

Physical Location of Appearance: The Immigration

Judge. Respondent, Respondent’s attorney of

record, Assistant Chief Counsel! and EOIR Inter-

preter all present in San Antonio, Texas.

Governing Circuit Law: United States Court of

Appeals for the Fifth Circuit.

CHARGES: Section 237(a)(2)(A)(i1i1) of the Im-

migration and Nationality Act, as

amended. after admission’ con-

victed of an aggravated felony as

defined in section 101(a)(43)(G) of

the Act, an offense relating to theft.

Section 237(a)(2)(A)(ili) of the Im-

migration and Nationality Act, as

amended, after admission’ con-

victed of an aggravated felony as

l7va

defined in section 101(a)(43)(F), a

crime of violence for which the

term of imprisonment is at least

one year.

APPLICATION: Respondent — section 212(c) waiver

of inadmissability.

Government — Motion to Pretermit,

section 212({c).

ON BEHALF OF RESPONDENT:

Guadalupe Ruiz, Esquire

110 Broadway, Suite 210

San Antonio, Texas 78205

ON BEHALF OF U.S. IMMIGRATION

AND CUSTOMS ENFORCEMENT:

Grace Garza, Esquire

Assistant Chief Counsel

P.O. Box 1939

San Antonio, Texas 78297-1939

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 38-year-old male. He was

placed into removal proceedings on the proper issue

and service and filing of a Notice to Appear (Form

1-862), dated June 7, 2004, and served upon him by

certified mail, return receipt requested. See Exhibit

1. The Government filed Form 1I-261, Additional

Charges of Inadmissability/VDeportability, dated Sep-

tember 16, 2004, served on Respondent in Court. See

Exhibit 1A. The Government filed an additional

Form 1-261, dated October 19, 2004, served on

18a

Respondent's attorney of record (see Exhibit 3). See

Exhibit 1B.

Respondent, through his attorney of record, admit-

ted that he was: not a citizen or national of the

United States; a native and citizen of Mexico; and

admitted into the United States at Laredo, Texas on

or about April 5, 1983 as an alien Jawfully admitted

for permanent residence. Respondent denied that he

was, on June 6, 1986, convicted in the Criminal Dis-

trict Court Number 3 of Dallas County Texas of

unauthorized use of a vehicle and that the offense

resulted in a sentence to a term of imprisonment

of five years. Respondent denied both charges of

removability, as amended, as stated above.

The Court found that Respondent was convicted

of unauthorized use of a vehicle as alleged and

sentenced to a term of imprisonment of five years.

The Court found that Respondent was removable as

charged by amendment.

In support of the Government’s allegation and

charge the record of conviction was presented. See

Exhibit 7.

Respondent designated Mexico for purposes of

removal. He requested as the sole form of relief his

section 212(c) waiver of inadmissability.

The issue for the Court 1s whether Respondent is

statutorily chgible for a section 212(c) waiver.

In support of Respondent’s requested relief he has

provided a fee paid application Form 1-191. See

Exhibit 11. He has provided supporting documents.

See Group Exhibits 10 and 12 for identification.

A master calendar hearing was held on November

30, 2004. One of the issues raised was whether

Respondent has a comparable ground of inadmiss-

19a

ability to make his claim in deportation proceedings

as a block 3 alien statutory eligible for a section

212(c) waiver.

The Court scheduled the matter for a hearing on

the merits. See Exhibit 8. At that hearing, the

Respondent appeared with numerous witnesses. See

Exhibit 13.

Respondent bears the evidentiary burden of proof

as to his eligibility for relief. See 8 C.F.R. Section

1240.8(d). See also Diaz-Resendez v. INS, 960 F.2d

493 495 (5th Cir. 1992); Matter of Marin, 16 I&N

Dec. 511 (BIA 1978). Elgibilty for a section 212(c)

waiver is determined to be available to an individual

now in removal proceedings where respondent ob-

tained a conviction based on a plea agreement within

the requisite time period as determined by JNS v. St.

Cyr, 121 S. Ct. 2271, (2001).

A section 212(c) waiver is available only to origi-

nally waived grounds of exclusion (a block 1 ahen

now) but it has been extended to apply in deportation

(now generally referenced as removal) if the ground

of deportation/removal is also a comparable ground of

excludability/inadmissability. See Matter of Chow,

20 I&N Dec. 647 (BIA 1993).

Respondent is charged as being deportable for hav-

ing been convicted of an aggravated felony for immi-

gration purposes, an offense relating to theft and a

crime of violence. Aggravated felonies do not appear

in section 212(a) as a ground of inadmuissability.

Respondent must establish a comparable ground.

See, e.g., Matter of Mezah, 20 I&N Dec. 603 (BIA

1991). Limited to drug trafficking, aggravated felony

as a comparable ground of a controlled substance of-

fense by Matter of Montenegro, 20 I&N Dec. 603 (BIA

1992). Specifically, the Board has held that although

20a

a removable offense under section 237(a) might be

determined to be a crime involving moral turpitude

that is not the establishment of a comparable ground.

See Matter of Wadud, 19 I&N Dec. 182 185 (BIA

1984); cf. Matter of Salmon, 16 I&N Dec. 734 736

(BIA 1978).

An Immigration Judge may exercise that authority

conferred by the Attorney General. See generally

Matter of Chow, supra; Matter of Montenegro, supra.

Jurisdiction must be affirmatively granted by regula-

tion. See Matter of Hernandez-Puente, 20 I&N Dec.

335 (BIA 1991). The precedent decisions of the

Board of Immigration Appeals are specifically bind-

ing on the Court. See Matter of E-L-H-, 22 i&N Dec.

21 (BIA 1598). This Court sits within the jurisdiction

of Fifth Circuit Court of Appeals and its precedent

decisions are binding. See, e.g., FDIC v. Adraham,

137 F.3d 264 268 (5th Cir. 1998). This Court has no

“equitable” authority.

Respondent has failed in his burden of establishing

statutory eligibility, specifically that there is a com-

parable ground of inadmissability affording him the

opportunity of a section 212(c) waiver.

FINDINGS OF FACTS AND

CONCLUSIONS OF LAW

Accordingly, the following findings of fact and con-

clusions of law are made.

I find the Court has jurisdiction of both subject

matter and Respondent in these proceedings on the

proper issue and service and filing of a Notice to

Appear.

| find that no issues of law or fact remain.

I find that Respondent is not a citizen or national

of the United States, but an alien.

Zila

I find that Respondent is removable as charged by

amendment by evidence that is clear and convincing.

I find that the country of Mexico was designated by

Respondent for purposes of removal.

1 find the necessary security and fingerprint checks

through the Government have been completed.

I find that the Respondent appeared statutorily eli-

gible for a section 212(c) waiver of inadmissability.

I find that the Respondent has not established that

there is a comparable ground of inadmissability mak-

ing a section 212{c) waiver available to him.

| find that the Respondent and the Government

have presented their respective cases and the record

of proceeding as to both removability and relief is

closed.

I find that inasmuch as Respondent has not estab-

lished his threshold obligation that there is a compa-

rable ground of inadmissability that the Govern-

ment’s motion should be granted to pretermit.

ORDERS

Accordingly, the following orders are entered

It is ordered that the Respondent’s request for a

section 212(c) waiver of inadmissability is preter-

mited and denied.

It is further ordered that any other relief for which

the Respondent may have been eligible is deemed

abandoned.

It is further ordered any reference to the Immigra-

tion and Naturalization Service or INS shall mean

the Department ef Homeland Security or DHS.

It is further ordered that Respondent shall be re-

moved from the United States to Mexico as charged

by amendment.

44a

Dated: February 4, 2005.

JOHN D. CARTE

United States Immigration Judge

[Certificate Page Omitted]

23a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60634

JOSE ANGEL SERNA-GUERRA,

Petitioner,

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals

[Filed November 3, 2008]

ON PETITION FOR REHEARING EN BANC

(Opinion May 30, 2008, 5th Cir., 285 F. App’x 110)

Before JOLLY, DENNIS, and PRADO, Circuit

Judges.

PER CURIAM:

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

serve and not disqualified not having voted in favor

(Fed. R. App. P. and 5th Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

24a

JAMES L. DENNIS, Circuit Judge, joined by KING,

WIENER and PRADO, Circuit Judges, dissenting

from the denial of rehearing en banc:

Petitioner Jose Angel Serna-Guerra, a permanent

resident alien, was convicted twenty-two years ago of

committing the Texas crime of unauthorized use of

a vehicle (““UUV”). He is now subject to removal be-

cause we have categorized that offense as a “crime of

violence.” See Brieva-Perez v. Gonzales, 482 F.3d 356

(5th Cir. 2007); United States v. Galvan-Rodriguez,

169 F.3d 217 (5th Cir. 1999). However, our continued

classification of UUV as a crime of violence directly

conflicts with the Supreme Court’s decision in Leocal

v. Ashcroft, 543 U.S. 1 (2004). Moreover, the Tenth

Circuit has concluded that our decisions are contrary

to Leocal and held that an indistinguishable offense

under Arizona law is not a crime of violence. See

United States v. Sanchez-Garcia, 501 F.3d 1208 (10th

Cir. 2007). By failing to rehear this case en banc,

the court has chosen not to correct this error in our

jurisprudence and has unnecessarily prolonged our

disagreement with the Tenth Circuit. I therefore

respectfully dissent from the denial of rehearing en

banc.

The definition of “crime of violence” includes “any

. 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).

A person commits UUV under Texas law “if he inten-

tionally or knowingly operates another's boat, air-

plane, or motor-propelled vehicle without the effec-

tive consent of the owner.” Tex. Pen. Code § 31.07(a).

We first classified UUV as a crime of violence in

Galvan-Rodriguez, where despite noting that some

25a

instances of UUV present no risk of physical force

being used against persons or property, the panel

summarily concluded that “the unauthorized use of a

vehicle ... carries a substantial risk that the vehicle

might be broken into, ‘stripped,’ or vandalized, or

that it might become involved in an accident, result-

ing not only in damage to the vehicle and other prop-

erty, but in personal injuries to innocent victims as

well.” 169 F.3d at 219. The panel elaborated:

[T]here is a strong probability that the inexperi-

enced or untrustworthy driver who has no pride

in 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.

Id. at 219-20. Thus, the panel concluded that UUV is

a “crime of violence” because physical force might re-

sult from the commission of the offense — not

because the elements of the offense naturally tnvolve

a substantial risk that physical force will be used

against persons or property.!

' Galvan-Rodriguez was the subject to two subsequent deci-

sions in this circuit, both critical of its reasoning and holding.

In United States v. Jackson, 220 F.3d 635 (5th Cir. 2000), the

panel considered whether UUV is a “crime of violence” under

former Guidelines § 4B1.2(a), which used a slightly different

definition of the term than § 16(b) because the former did not

account tor force against property. The majority, concluding

that Galvan-Rodriguez was decisive, admitted that “we are not

unsympathetic to Jackson's argument that [UUV] is not what

26a

Galvan-Rodriguez’s reasoning and holding are un-

tenable after the Supreme Court's decision in Leocal

v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court

held that driving under the influence of alcohol does

not constitute a crime of violence under § 16. Jd. at

11-13. The Court reasoned that § 16(a) “most natu-

rally suggests a higher degree of intent than negli-

gent or merely accidental conduct” and concluded

that § 16(b) “does not ... encompass all negligent

misconduct, such as the negligent operation of a ve-

hicle. It simply covers offenses that naturally involve

a person acting in disregard of the risk that physical

force might be used against another in committing

an offense.” Jd. at 9-10. Thus, “[t]he reckless disre-

gard in § 16 relates not to the general conduct or to

the possibility that harm will result from a person’s

conduct, but to the risk that the use of physical force

against another might be required in committing a

crime.” Jd. The Court emphasized that “[t]he risk

that an accident may occur when an_ individual

drives while intoxicated is simply not the same thing

as the risk that the individual may ‘use’ physical

force against another in committing the DUI offense.”

Id. at 10 n.7. Because the DUI offense did not, by its

nature, pose a substantial risk that the perpetrator

one might typically consider a ‘crime of violence, but we do not

write on a clean slate.” Jd. at 639. Later, in United States v.

Charles, 301 F.3d 309 (5th Cir. 2002) (en banc), the en banc

court overruled Juckson, holding that UUV was not a crime

of violence under § 4B1.2(a). We reasoned that although the

perpetrator’s conduct may present a risk of injury to property,

i.e., the automobile, such conduct does not present a serious risk

of physical injury to another person as required by § 4B1.2(a).

Id. at 314. The court declined to consider Galvan-Rodriguez’s

in other contexts, such as § 16 cases. Nonetheless, Charles

demonstrates our court’s uneasiness with Galvan-Rodriguez,

even pre-dating Leocal.

27a

would use physical force in its commission (as op-

posed to the possible results of committing the

crime), the court found that DUI offense at issue was

not a “crime of violence.” /d. at 10 n.7 & 11.

Leocal repudiated the reasoning in = Galvan-

Rodriguez for finding UUV a crime of violence,

namely our conclusion that conduct that might occur

as a result of using a vehicle without authority poses

a “substantial risk” of physical force. Instead. Leocal

requires consideration of whether the commission of

the offense “naturally involve{s]” a substantial risk of

harm, that is, whether the offense involves a “reck-

less disregard ... to the risk that the use of physical

force against another might be required in commit-

ting a crime.” Leocal, 543 U.S. at 10. The Texas

UUV offense does not, by its elements, entail a reck-

less disregard to the risk that physical force might be

required to commit the crime. Indeed, the offense

criminalizes a broad range of conduct, such as joy-

riding or violating a rental agreement, that does not

present any risk of physical force being used against

persons or property.* It is also difficult see how the

“ For example, Texas courts have convicted defendants under

the statute for such things as operating a vehicle beyond the

time allotted by the vehicle’s owner, see Coleman v. Texas.

No. 11-06-00155-CR, 2008 WL 97051 (Tex. App. Jan. 10, 2008):

Wilborn v. Texas, No. 12-06-00258-CR, 2007 WL 2381376 (Tex.

App. Aug. 22, 2007); Bradford v. Texas, No. 07-02-0237-CR,

2003 WL 21501968 (Tex. App. Jul. 1, 2003); exchanging money

and tickets with an employee at a car rental company to use

vehicles without an authorized rental agreement, see Roy v.

Texas, 161 S.W.3d 30 (Tex. App. 2004); taking another's keys

and using the vehicle without permission, see Johnson v. Texas,

No. 05-92-00385-CR, 1994 WL 279803 (Sth Cir. Jun. 23, 1994);

and obtaining possession of a vehicle under false pretenses, see

Nance v. Texas, 647 S.W.2d 660 (Tex. App. 1983) (although the

court reversed the conviction based on a separate evidentiary

YRa

—

facially innocuous crime of UUV poses a greater risk

of physical force than driving under the influence.

Qur decision not to rehear this case also prolongs

an unnecessary disagreement with the Tenth Circuit,

which correctly concluded in Sanchez-Garcia that an

indistinguishable offense under Arizona law is not a

crime of violence. The defendant in Sanchez-Garcia

had been convicted of UUMT, which a person com-

mits under Arizona law “‘if, without intent perma-

nently to deprive, the person ... [k]nowingly takes

unauthorized control over another person’s means of

transportation.” Sanchez-Garcia, 501 F.3d at 1209

(quoting Ariz. Rev. Stat. § 13-1803(A)(1) (alterations

in original)).* The Tenth Circuit observed that “[ljike

any offense involving the unauthorized taking of

property, it 1s clear there is some chance that de-

structive or violent force might be employed in the

commission of UUMT when a person initially takes

unauthorized control over a means of transporta-

tion.” 501 F.3d at 1213. But the Tenth Circuit con-

cluded that such risks are not “substantial” because

issue, it concluded that the evidence was sufficient to support

the UUMV conviction): none of which present any risk of physi-

cal force being used

> The essential elements of the Texas UUMV offense and the

Arizona UUMT offense are virtually identical. Compare Ariz

Rev. Stat. § 13-1803(A)(1) (prohibiting (1) knowingly taking

control, (2) without authorization, (3) of another person’s means

of transportation), with Tex. Pen. Code § 31.07 (prohibiting

(1) the intentional or knowing operation, (2) without the effec-

tive consent of the owner, (3), of another's motor propelled vehi-

cle). Although the Arizona statute has an additional phrase

(“without intent to permanently deprive”) that does not appear

in the ‘Texas statute, the phrase is not an affirmative element of

the offense. See State v. Kamat, 911 P.2d 626, 628 (Ariz. App.

1995)

29a

UUMT “encompasses a broad range of conduct that

does not present any risk of such force being used”

such as driving a rental vehicle past the expiration of

the rental agreement, borrowing a car that he or she

knows is stolen, or taking another’s keys and going

joyriding. Jd. The Tenth Circuit considered but

rejected our decision in Galvan-Rodriguez, finding

that it relied on unsupported conjecture and conflicts

with Leocal. Jd. at 1214."

We are bound by the Supreme Court's decisions

and therefore have an obligation to correct panel} rul-

ings that conflict with its instructions. See Rivers v.

Roadway Express, Inc., 511 U.S. 298, 312 (1994):

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

460 U.S. 533 (1983). There is also an overarching

interest in maintaining the uniformity of federal im-

migration laws and consistency in their enforcement.

Bustamante-Barrera v. Gonzales, 447 F.3d 388, 399

(5th Cir. 2006); Renteria-Gonzalez v. INS, 322 F.3d

804, 814 (5th Cir. 2002). Rehearing this case would

serve those purposes, yet the majority of the court

' In Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007),

the panel attempted to reconcile Galvan-Rodriguez with Leocal.

The panel concluded that an offense can be a crime of violence

under Leocal even in the absence of an element requiring

intentional use of force because “Leoca/l requires [only] that the

nature of the offense involves a substantial risk of the inten-

tional use of force.” 482 F.3d at 360-61. Apparently relying on

Galvan-Rodriguez's finding that UUV naturally involves such a

substantial risk, the panel held that Levcal is therefore consis-

tent with Galvan-Rodriguez. Id. at 361. However, as discussed

above and as the Tenth Circuit recognized, the reasoning in

Galvan- Rodriguez which relied on the possible incidental

effects of committing the crime — conflicts with Leocal’s holding

that a crime is “violent” only uf the risk is inherent in the com-

mission of the crime itself. The petitioner in Brieva did not pe-

tition the Supreme Court for a writ of certiorari.

30a

has chusen to allow our erroneous classification of

UUV as a crime of violence to continue. Accordingly,

1 dissent from the denial of rehearing en banc

3Sla

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 16 provides:

§ 16. Crime of violence defined

The term “crime of violence” means —

(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.

18 U.S.C. § 924(e) provides in relevant part:

§ 924. Penalties

*x*x*tk

(e){1) In the case of a person who violates section

922(g) of this title and has three previous convictions

by any court referred to in section 922(g)(1) of this

title for a violent felony or a serious drug offense,

or both, committed on occasions different from one

ancther, such person shall be fined under this title

and imprisoned not less than fifteen years, and, not-

withstanding any other provision of law, the court

shall not suspend the sentence of, or grant a proba-

tionary sentence to, such person with respect to the

conviction under section 922(g).

(2) As used in this subsection —

=: & @

32:

(B) the term “violent felony” means any crime

punishable by imprisonment for a term exceeding

one year, or any act of juvenile delinquency involv-

ing the use or carrying of a firearm, knife, or

destructive device that would be punishable by

imprisonment for such term if committed by an

adult, that —

(i) has as an element the use, attempted use,

or threatened use of physical force against the

person of another; or

(ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another; and

a person has committed an act of juvenile delin-

quency involving a violent felony.

2? e@ @

Texas Penal Code § 31.07 provides:

§ 31.07. Unauthorized Use of a Vehicle

(a) A person commits an offense if he intentionally

or knowingly operates another’s boat. airplane, or

motor-propelled vehicle without the effective consent

of the owner.

(b) An offense under this section is a state jail

felony.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.