                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-2836
                                ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Southern District of Iowa.
Roberto Gonzalez-Lopez,                    *
                                           *             [PUBLISHED]
             Appellant.                    *

                                ________________

                                Submitted: February 11, 2003
                                    Filed: July 14, 2003
                                ________________

Before HANSEN,1 Chief Judge, LOKEN and SMITH, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

       Roberto Gonzalez-Lopez appeals the 57-month sentence imposed by the
district court2 following Gonzalez-Lopez's conviction for illegal reentry by a deported


      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
      2
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
alien in violation of 8 U.S.C. § 1326(a) & (b)(2) (2000). Specifically, Gonzalez-
Lopez argues that his prior state court conviction for Automobile Homicide was not
a "crime of violence" for purposes of United States Sentencing Guideline (USSG)
Manual § 2L1.2(b)(1)(A)(ii) (2001) and that the court therefore erred in imposing a
16-level enhancement to his offense level. He also takes issue with the court's refusal
to grant a downward departure. We affirm Gonzalez-Lopez's sentence.

                                          I.

      Gonzalez-Lopez was indicted on the charge of illegal reentry by a deported
alien on January 24, 2002. Gonzalez-Lopez had been deported on three prior
occasions: November 22, 1995, December 17, 1999, and January 25, 2000. The
December 17, 1999, deportation followed Gonzalez-Lopez's conviction for
Automobile Homicide in Utah, for which he received an indeterminate sentence not
to exceed five years.

       Gonzalez-Lopez pleaded guilty to the illegal reentry charge and the district
court concluded at sentencing that Gonzalez-Lopez was subject to the statutory
enhancement provided by 8 U.S.C. § 1326(b)(2) (increasing statutory maximum
sentence to 20 years for reentry after commission of aggravated felony). In applying
the Sentencing Guidelines, the court determined that Automobile Homicide was a
crime of violence and increased Gonzalez-Lopez's offense level by 16 levels pursuant
to USSG § 2L1.2(b)(1)(A)(ii). The court also declined to depart downward from the
enhanced sentencing range so established, rejecting Gonzalez-Lopez's argument that
his conviction for Automobile Homicide fell outside the heartland of cases fitting the
definition of "crime of violence." The court sentenced Gonzalez-Lopez to 57 months
of imprisonment, and Gonzalez-Lopez appeals that sentence.




                                          2
                                           II.

        We review the district court's interpretation of the Sentencing Guidelines de
novo. United States v. Gomez-Hernandez, 300 F.3d 974, 977 (8th Cir. 2002), cert.
denied, 123 S. Ct. 929 (2003). The primary issue in this case is whether Gonzalez-
Lopez's prior conviction for Automobile Homicide is a "crime of violence" as defined
in USSG § 2L1.2. Because the definition of "crime of violence" was recently
amended for purposes of the guideline, we review the prior definition and the reason
for its amendment to better inform our analysis.

        A defendant found guilty of illegal reentry following deportation is sentenced
pursuant to § 2L1.2 of the Sentencing Guidelines, which provides for a base offense
level of 8. A defendant whose previous deportation followed conviction for specific
types of crimes receives an enhancement to his base offense level depending on the
nature of the previous conviction. Prior to November 1, 2001, a defendant with a
prior conviction for any aggravated felony received a 16-level enhancement. See
USSG § 2L1.2 (2000). An aggravated felony was defined by reference to 8 U.S.C.
§ 1101(a)(43), see USSG § 2L1.2 comment. (n.1) (2000), which included "a crime of
violence (as defined in section 16 of title 18 . . . ) for which the term of imprisonment
is at least one year." 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 in turn defines
"crime of violence" as

      (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, [the "use" prong] 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 [the "other" prong].

18 U.S.C. § 16. Thus, before the amendment, a prior conviction for an offense that
met either subsection (a) or (b) subjected the defendant to a 16-level enhancement.

                                           3
       The Sentencing Commission significantly rewrote section 2L1.2 in 2001, and
it now provides "a sliding scale of enhancements from eight to sixteen levels based
on the seriousness of the [prior] aggravated felony as defined in the amended
guideline." Gomez-Hernandez, 300 F.3d at 976 (discussing change in guideline).
The amendment was a response to concern within the legal community that the 16-
level enhancement that applied to all aggravated felonies resulted in disproportionate
penalties. See USSG Supp. to App. C, amend. 632. Because the prior guideline
incorporated the broad definition of aggravated felony found in 8 U.S.C. §
1101(a)(43), "a defendant who previously was convicted of murder, for example,
receive[d] the same 16-level enhancement as a defendant previously convicted of
simple assault." Id.

        "[T]he Commission intended the guideline amendment to break up aggravated
felonies by providing the sixteen-level increase only in the case of the more serious
offenses . . ., while providing lesser penalties for less serious, but still aggravated,
offenses . . .." United States v. Caicedo-Cuero, 312 F.3d 697, 711 (5th Cir. 2002)
(discussing the amendments to USSG § 2L1.2), cert. denied, 123 S. Ct. 1948 (2003).
To achieve this result, "the Commission developed two categories of crimes of
violence . . ., separating those acts that are more serious from those that are less so."
Id. It included in the application notes a narrow definition of "crime of violence" to
which the 16-level enhancement applied. USSG § 2L1.2, comment. (n.1(B)(ii)). The
Commission continued to define an "aggravated felony," which now results in an
eight-level enhancement, by reference to the § 1101(a)(43) definition, which includes
the broader definition of crime of violence. USSG § 2L1.2(b)(1)(C) & comment.
(n.2). The narrower definition (resulting in a 16-level enhancement if applicable)
contained in the application notes states that "crime of violence"

      (I)    means an offense under federal, state, or local law that has as an
             element the use, attempted use, or threatened use of physical force
             against the person of another, and


                                           4
      (II)   includes murder, manslaughter, kidnaping, aggravated assault,
             forcible sex offenses[], robbery, arson, extortion, extortionate
             extension of credit, and burglary of a dwelling.

USSG § 2L1.2, comment. (n.1(B)(ii)).

       Subsection (I) of the amended guideline definition of crime of violence is
identical to the Title 18 U.S.C. § 16(a) definition except that the guideline definition
applies only to physical force used against the person, but not the property, of
another. Subpart (II) of the guideline definition is significantly different from 18
U.S.C. § 16(b), however, in that it contains a list of specific crimes and does not
include § 16(b)'s catchall phrase "any other offense . . . that by its nature involves a
substantial risk that physical force may be used . . . in the course of committing the
offense"–the "other" prong. Thus, after the amendment, offenses that meet the
"other" prong of § 16(b), but do not meet the "use" prong of the guideline's
subsection (I) or are not specifically listed in the guideline's subsection (II), subject
the defendant to an 8-level enhancement rather than the 16-level enhancement under
the prior guideline.

       Although most cases addressing the issue of whether a negligent homicide is
a crime of violence in varying contexts have relied on the "other" prong in the
relevant crime of violence definition, see, e.g., Omar v. INS, 298 F.3d 710, 718-20
(8th Cir. 2002) (holding that the Minnesota offense of criminal vehicular homicide
is a crime of violence under 8 U.S.C. § 16(b)) and cases cited therein, some courts
have addressed the issue of whether a negligent homicide offense meets the "use"
prong of the definition, with a resulting circuit conflict. The conflict arises over the
issue of whether or not the "use" prong contains an element of intent–must the
offense contemplate an intentional use of force. Compare United States v. Vargas-
Duran, 319 F.3d 194, 198-99 (5th Cir. 2003) (holding that crime of violence under
the current § 2L1.2 definition of crime of violence did not require an intent to use
force and the defendant's prior conviction for intoxicated assault met the "use" prong

                                           5
of the guideline definition), United States v. Santana-Garcia, No. 98-2234, 2000 WL
491510, at **2-3 (6th Cir. Apr. 18, 2000) (unpublished) (holding that an Indiana
conviction for vehicular homicide is a crime of violence under both prongs of § 16),
and Le v. U.S. Atty. Gen., 196 F.3d 1352, 1354 (11th Cir. 1999) (holding that the
crime of driving under the influence with serious bodily injury is a crime of violence
under § 16(a) because "[c]learly, serious bodily injury is included as an element of
this offense," which element "includes the actual use of physical force") with Bazan-
Keyes v. INS, 256 F.3d 600, 609 (7th Cir. 2001) (holding that the "use" prong
contained in § 16(a) required an intentional use of force and therefore a defendant's
prior conviction for homicide by intoxicated use of a vehicle is not a crime of
violence under § 16(a)) and United States v. Trinidad-Aquino, 259 F.3d 1140, 1145
(9th Cir. 2001) (noting that by employing the term "use," both prongs of § 16 require
some volitional act–intentional or at least reckless–and that a prior conviction for the
offense of driving while intoxicated resulting in physical injury to another, for which
a defendant could be convicted based on the defendant's mere negligence, did not
provide sufficient mens rea to meet the volitional element imposed by the term "use").
The Third Circuit has stated in dicta that "[u]se of physical force is an intentional act,
and therefore the first prong of both definitions [under § 16(a) and USSG § 4B1.2(1)]
requires specific intent to use force." United States v. Parson, 955 F.2d 858, 866 (3d
Cir. 1992) (holding that defendant's conviction for reckless endangering was a crime
of violence under the second prong of the career offender guideline, § 4B1.2(a)(2),
because the second prong of that guideline focuses on conduct rather than intent to
use force). We have not addressed this issue head-on before today. Cf. Omar, 298
F.3d at 713 n.4 (declining to decide whether vehicular homicide was a crime of
violence under § 16(a) but noting "that the Sixth Circuit has held in an unpublished
opinion that drunk driving homicide is a crime of violence under both § 16(a) and §
16(b)").

      To decide whether Subsection (I) of the guideline definition of crime of
violence contains a volitional element, we start with the plain language of the

                                            6
guideline, considering not only its bare meaning, "but also its placement and purpose
in the statutory scheme." Bailey v. United States, 516 U.S. 137, 144-45 (1995)
(internal quotations omitted). For the purposes of subsection (I), crime of violence
"means an offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of another."
USSG § 2L1.2, comment. (n.1(B)(ii)(I)). "Most criminal statutes separate the
forbidden acts (the actus reas) from the mental state (the mens rea)." United States
v. Rutherford, 54 F.3d 370, 378 (7th Cir.) (Easterbrook, J., concurring), cert. denied,
516 U.S. 924 (1995). The element of the predicate offense that the crime of violence
definition is concerned with is the actus reas–the forbidden act. One of three types
of acts is required: that the defendant actually use, attempt to use, or threaten to use
physical force against another person. The term "use" is a verb, connoting action, as
explained by the Supreme Court in Bailey when it held that a defendant must
"actively employ" a gun before it is considered to have been "used" during and in
connection with the predicate crime. Bailey, 516 U.S. at 150. Gonzalez-Lopez asks
us to write in the word "intentional" before the first "use" so that the definition would
read "means an offense . . . that has an element the intentional use . . . of physical
force." However, the text of the guideline definition mentions only the actus reas and
is silent as to the mens rea–or intent–element. See Rutherford, 54 F.3d 378
(Easterbrook, J., concurring).

       The Sentencing Commission understands the difference between actus reas and
mens rea and specifically includes a scienter element within a guideline when it
intends mens rea to be considered. See, e.g., USSG § 2K1.3(b)(2) (increasing the
base offense level "[i]f the offense involved any explosive material that the defendant
knew or had reason to believe was stolen") (emphasis added); USSG §
2K1.4(a)(1)(A) (setting the base offense level for arson at 24 "if the offense created
a substantial risk of death or serious bodily injury . . . and that risk was created
knowingly") (emphasis added); USSG § 3C1.1(A) (increasing the base offense level
if "the defendant willfully obstructed or impeded . . . the administration of justice

                                           7
during the course of the investigation, prosecution, or sentencing") (emphasis added).
Courts, including ours, have refused to read scienter elements into guidelines where
the Sentencing Commission has not provided them. See United States v. Brannan,
74 F.3d 448, 453 (3d Cir. 1996) (rejecting argument that USSG § 2K2.1(b)(5), which
enhances the base offense level for illegal possession of a firearm "[i]f the defendant
used or possessed any firearm . . . in connection with another felony offense,"
required intentional use or possession and holding that the guideline applied to a
defendant who accidently discharged the firearm); United States v. Amerson-Bey,
898 F.2d 681, 683 (8th Cir. 1990) (holding that USSG § 2K2.1(b)(2) (related to
possession of a stolen firearm) does not require that the defendant know the gun was
stolen). We simply cannot read language into the guideline that clearly is not there.
See Omar, 298 F.3d at 720 (holding that the definition of crime of violence in § 16(b)
(the "other" prong) does not require an element of intent and "reject[ing] [Omar's]
attempt to read more into the words 'may be used' than they can fairly support"). We
must determine if the predicate offense which is used to enhance the defendant's
offense level for the illegal reentry crime, has as an element the use of physical force
against another, irrespective of the predicate offense's mens rea element.

       A person commits Automobile Homicide under the Utah statute if he: (1)
operates a motor vehicle, (2) in a negligent manner, (3) causing the death of another,
(4) while under the influence of alcohol as that phrase is defined by the statute. Utah
Code Ann. § 76-5-207(1). As we noted in Omar, "[a] vehicle can exert considerable
physical force because of its structure, weight and capacity for motion and velocity."
Omar, 298 F.3d at 717. By operating a vehicle, the defendant clearly uses and
employs the force attendant with that vehicle. The statute further requires that the
defendant cause the death of another, which ties the use of physical force with the
requirement that the force be used against another person. Clearly, the requirement
that the offender cause death while operating, or using, a vehicle encompasses a
requirement that an offender use force against another person to cause the death.
Vargas-Duran, 319 F.3d at 196.

                                           8
       Gonzalez-Lopez raises only the issue of what volitional element, if any, is
required in the predicate offense. He does not otherwise argue that Automobile
Homicide does not have as an element the use of physical force against another.
There conceivably may be ways to commit the Utah offense of Automobile Homicide
wherein the defendant's vehicle is not the source of the death-causing force. If
Gonzalez-Lopez had made such an argument, we would be required to look to the
charging papers and consider the specific acts charged against Gonzalez-Lopez. See
Gomez-Hernandez, 300 F.3d 974, 980. We decline to perform that analysis, however,
because Gonzalez-Lopez has limited his appeal to the issue of whether the use of
force must be intentional under the guideline. Having considered the issue, we hold
that the definition of crime of violence contained in § 2L1.2(b)(1) does not contain
a volitional element and the Utah criminal offense of Automobile Homicide contains,
as an element, the use of physical force against another.3

       Gonzalez-Lopez also takes issue with the district court's refusal to grant him
a downward departure. A district court's refusal to grant a downward departure is
generally unreviewable on appeal, unless the district court had an unconstitutional
motive or erroneously believed that it was without authority to grant the departure.
United States v. Young, 315 F.3d 911, 914 (8th Cir.), cert. denied, 71 U.S.L.W. 3722
(U.S. May 19, 2003) (No. 02-9949). Gonzalez-Lopez argues that the district court
erroneously believed that it lacked authority to depart and therefore we may review
its decision for an abuse of discretion.

      At sentencing, Gonzalez-Lopez asked the district court to depart downward
under USSG § 5K2.0, p.s., arguing that his case was outside the heartland of offenses
otherwise included in § 2L1.2's definition of crime of violence because, as the district


      3
       Our holding makes unnecessary a discussion of whether Automobile Homicide
is the equivalent of manslaughter, and thus among the specifically enumerated
offenses under subsection (II) of the guideline definition, as urged by the government.
                                           9
court found, his predicate conviction for Automobile Homicide did not require the
intentional application of force. In denying Gonzalez-Lopez's request, the district
court stated that "I think that it's consistent with the ruling that I've already made with
regard to the issue of the treatment of the vehicular homicide conviction from Utah
to conclude that, under the circumstances of this case, a departure would not be
authorized. Because I think that the application of the guidelines is appropriate with
regard to the enhancement that's already been imposed, I think it would be contrary
to that position to suggest that a departure would be authorized under the
circumstances, and so I am not going to depart." (Sent. Tr. at 23 (emphasis added).)
Gonzalez-Lopez argues that the district court mistakenly believed that it lacked
authority to depart on the basis of the seriousness of the offense. We read the district
court's comments differently.

      A factor that is already taken into account by an applicable guideline can serve
as the basis for a downward departure only if that factor exists to an exceptional
degree. Koon v. United States, 518 U.S. 81, 96 (1996). Contrary to Gonzalez-
Lopez's assertions (Appellant's Br. at 16), § 2L1.2 does take the seriousness of the
predicate offense into account by providing a sliding scale of enhancements. See
Gomez-Hernandez, 300 F.3d at 976 (noting that the sliding scale is "based on the
seriousness of the aggravated felony"); USSG Supp. to App. C, amend. 632 ("The
amendment . . . provid[es] a more graduated sentencing enhancement . . . depending
on the seriousness of the prior aggravated felony. In doing so, the Commission
determined that the 16-level enhancement is warranted if the defendant previously
was deported . . . after a conviction for certain serious offenses, specifically, . . . a
felony that is a crime of violence . . . ."). The district court found that the 16-level
enhancement applied and that, as a legal matter, it would be contradictory to depart
on the same basis that made the enhancement applicable to begin with "under the
circumstances of this case." The court implicitly recognized the legal standard that
applied to its decision whether to grant a downward departure. Within that
framework, the district court determined that "the circumstances of this case" did not

                                            10
warrant a departure. "We are without authority to review such a ruling." United
States v. VanHouten, 307 F.3d 693, 697 (8th Cir. 2002) (holding that a district court
was aware of its authority to depart but chose not to where the district court stated
that it had no authority to depart "in a case like this").

                                        III.

      The sentence imposed by the district court is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         11
