                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                December 18, 2008
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 07-2129
                                                      (D. New Mexico)
 RAFAEL PEREZ-GUTIERREZ,                          (D.C. No. CR-07-254-BB)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. INTRODUCTION

      Defendant-Appellant Rafael Perez-Gutierrez was charged with illegal

reentry after deportation in violation of 8 U.S.C. § 1326(a), (b). Perez-Gutierrez

entered into a plea agreement pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C). The plea agreement contained a waiver of the right to appeal. The

presentence report (“PSR”) provided for an eight-level enhancement of the

offense level, concluding Perez-Gutierrez’s prior conviction for unauthorized use

of a vehicle under Texas law constituted a prior aggravated felony under the

United States Sentencing Guidelines (“Guidelines”). At the sentencing hearing

before the district court, neither party objected to the offense level set forth in the

PSR. The district court accepted the offense level set forth in the PSR and

imposed a sentence of thirty months. On appeal, the government confesses error

and declines to seek enforcement of the waiver of appeal in the plea agreement.

Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

hold the district court erred in concluding Perez-Gutierrez’s prior conviction for

unauthorized use of a vehicle constituted an aggravated felony. We therefore

reverse the decision of the district court and remand for proceedings consistent

with this opinion.

II. BACKGROUND

      The United States filed an Information charging Perez-Gutierrez with




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illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), (b).

Subsequently, the government and Perez-Gutierrez entered into a Rule

11(c)(1)(C) plea agreement. The plea agreement provided the sentence would be

determined after the PSR was prepared and Perez-Gutierrez had an opportunity to

request corrections. The parties agreed the Guidelines would be used to

determine the sentencing range.

      The plea agreement set forth the base offense level for this offense at level

eight, to be enhanced based upon the most serious of Perez-Gutierrez’s prior

convictions. The agreement further provided the resulting adjusted total offense

level would be reduced: (1) for acceptance of responsibility, and (2) by one

additional level pursuant to the Fast Track plea agreement. The government also

agreed to recommend a sentence at the lower end of what was ultimately

determined to be the appropriate guideline range. In return, Perez-Gutierrez

agreed he would not seek any further reduction, departure, or variance or assert

any appellate challenge to the sentence.

      Perez-Gutierrez entered his plea of guilty to the Information. A PSR was

prepared. The PSR author began with a base offense level of eight pursuant to

§ 2L1.2(a). The author then added eight levels pursuant to § 2L1.2(b)(C),

concluding Perez-Gutierrez had been previously convicted of an aggravated

felony. The author referenced Perez-Gutierrez’s prior Texas conviction for the

unauthorized use of a vehicle. Had the felony not been classified as

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“aggravated,” Perez-Gutierrez would have been subject only to a four-level

enhancement. U.S.S.G. § 2L1.2(b)(1)(D). Applying the terms of the plea

agreement, the author applied the three-level and one-level reductions. The

adjusted total offense level was twelve. Perez had fifteen criminal history points,

which placed him in criminal history category VI. A total offense level of twelve

combined with a criminal history category VI resulted in a sentence range of

thirty to thirty-seven months under the terms of the plea agreement.

      Perez-Gutierrez, by trial counsel, filed no objections to the PSR. At

sentencing the district court, pursuant to Rule 11(c)(1)(C), accepted the offense

level of twelve set forth in the PSR. The district court imposed a thirty-month

sentence. Perez-Gutierrez then appealed to this court.

      New counsel for Perez-Gutierrez was appointed by this court. Appointed

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting the appellate waiver in the plea agreement barred the appeal and, in any

event, there were no non-frivolous issues to raise. Citing United States v.

Galvan-Rodriguez, 169 F.3d 217, 220 (5th Cir. 1999), counsel maintained the

district court correctly concluded Perez-Gutierrez’s prior conviction for

unauthorized use of a vehicle under Texas law constituted a prior aggravated

felony conviction. In accordance with Anders, counsel also moved to withdraw.

      In its September 8, 2008, order, this court concluded the appeal included a

non-frivolous issue: whether Perez-Gutierrez’s unauthorized use of a vehicle

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conviction constitutes an aggravated felony under the Guidelines. Accordingly,

this court appointed the Office of the Federal Public Defender to file a

supplemental opening brief addressing this issue and any other non-frivolous

issues.

      Perez-Gutierrez contends, and the government concedes, the district court

committed plain error in concluding the unauthorized use of a vehicle under

Texas law is an aggravated felony for purposes of § 2L1.2(b)(1)(C). 1

III. DISCUSSION

      This court reviews de novo the determination of whether a prior offense is

an aggravated felony under the Guidelines. United States v. Venegas-Ornelas,

348 F.3d 1273, 1274 (10th Cir. 2003). Perez-Gutierrez’s claim that the

unauthorized use of a vehicle conviction is not an aggravated felony, however,

was not raised below. Thus, the district court’s ruling is reviewed for plain error.

United States v. Torres-Duenas, 461 F.3d 1178, 1180 (10th Cir. 2006). “Plain

error occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc) (quotation omitted).



      1
        Recognizing the district court’s error, the government, in the interest of
justice, expressly declines to seek enforcement of the waiver of appeal in the plea
agreement.

                                          -5-
      An aggravated felony is defined by the Guidelines through reference to 8

U.S.C. §1101(a)(43). U.S.S.G. § 2L1.2, cmt. n.3(A). An aggravated felony is

defined under 8 U.S.C. § 1101(a)(43)(F) as a crime of violence, as defined by 18

U.S.C. § 16, not including a political offense, for which the term of imprisonment

is at least one year. A crime of violence is defined by 18 U.S.C. § 16 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, 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 Texas statute under which Gutierrez-Perez was convicted for the

unauthorized use of a vehicle provides, “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.” Tex. Penal Code Ann.

§ 31.07(a). As the government concedes, “physical force” is not a delineated

element of the offense. Thus, the only way in which a conviction for

unauthorized use of a vehicle can be categorized as an aggravated felony is if

there is a “substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.” 18 U.S.C. § 16(b).

      In Galvan-Rodriguez, the Fifth Circuit examined the Texas statute at issue

in this case and determined the unauthorized use of a vehicle was a crime of


                                          -6-
violence under 18 U.S.C. § 16(b), and therefore an aggravated felony under the

Guidelines. 169 F.3d at 220. This court, however, explicitly rejected the

Galvan-Rodriguez analysis in relation to Arizona’s unlawful use of means of

transportation statute. United States v. Sanchez-Garcia, 501 F.3d 1208, 1213-14

(10th Cir. 2007). In Sanchez-Garcia, this court noted the similarity between the

Arizona and Texas offenses and concluded the risk of the use of physical force in

the type of crime encompassed by such statutes was not “substantial.” Id. at

1213. This court explained “there is a relatively low probability of destructive or

violent force being employed to gain initial control over a vehicle in the

commission of [the crime].” Id. Therefore, this court “decline[d] to follow the

Fifth Circuit’s decision.” Id. at 1214.

      Thus, under circuit precedent, the district court erred in concluding the

unauthorized use of a vehicle constitutes an aggravated felony, thereby satisfying

the first prong of the plain error standard. The second prong of the plain error

standard is also met, as this court’s unambiguous precedent rejecting the

Galvan-Rodriguez analysis and holding makes clear the district court erred in

concluding Perez-Gutierrez committed an aggravated felony. Morales-Fernandez

v. I.N.S., 418 F.3d 1116, 1124 (10th Cir. 2005) (“[A]n error is plain if it is clear

or obvious at the time of the appeal.” (quotation omitted)). As to the third prong

of the plain error standard, Perez-Gutierrez’s rights were substantially affected

because, as a result of the mistake, he received a significantly greater term of

                                          -7-
imprisonment than he would have absent the error. United States v. Serrata, 425

F.3d 886, 917 (10th Cir. 2005) (“In order to demonstrate that an error affected his

substantial rights, a defendant must show a reasonable probability that the defects

in his sentencing altered the result of the proceedings.” (quotations omitted)).

Rather than receiving a sentence based upon a four-level enhancement, with a

corresponding guideline range of twenty-one to twenty-seven months under the

terms of the plea agreement, he received a sentence in the thirty to thirty-seven

month range. A sentence at the low end of the twenty-one to twenty-seven month

range, in accordance with the promised government recommendation, would

reduce his prison term significantly. Finally, the fourth prong of the plain error

standard is also met, as the erroneous increase in Gutierrez-Perez’s prison term

due to an incorrect application of the Guidelines seriously affects the fairness,

integrity, or public reputation of judicial proceedings. As discussed above, absent

the district court’s plain error, Gutierrez-Perez likely would have received a

significantly shorter sentence. United States v. Brown, 316 F.3d 1151, 1161 (10th

Cir. 2003) (“A review of federal appellate decisions considering whether to

correct unobjected-to sentencing errors reveals that the key concern has been

whether correct application of the sentencing laws would likely significantly

reduce the length of the sentence. When circuit courts have concluded that it

would, they have not hesitated to exercise their discretion to correct the error.”).




                                         -8-
IV. CONCLUSION

      The district court erred in concluding a conviction for unauthorized use of a

vehicle pursuant to Texas law constituted an aggravated felony under the

Guidelines. We therefore reverse the decision of the district court and remand

for proceedings consistent with this opinion.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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