                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0430p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                                        No. 05-6354
           v.
                                                      ,
                                                       >
 ADALBERTO LARA PORTELA, also known as Daniel         -
                                                      -
                               Defendant-Appellant. -
 Rodriguez; also known as Sergio Maza-Sosa,

                                                      -
                                                     N
                              Appeal from the United States District Court
                          for the Eastern District of Tennessee at Greeneville.
                            No. 04-00055—J. Ronnie Greer, District Judge.
                                         Argued: October 23, 2006
                                Decided and Filed: November 21, 2006
            Before: MARTIN and COOK, Circuit Judges; BERTELSMAN, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Clifton L. Corker, Johnson City, Tennessee, for Appellant. Perry H. Piper,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
ON BRIEF: Clifton L. Corker, Johnson City, Tennessee, for Appellant. Nancy Stallard Harr,
ASSISTANT UNITED STATES ATTORNEY, Greenville, Tennessee, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        COOK, Circuit Judge. Adalberto Lara Portela challenges his 94-month sentence for
possessing cocaine with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and for
violating 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2) related to the illegal reentry of removed aliens.
Portela contends that the district court erroneously enhanced his sentence because his prior
Tennessee conviction for vehicular assault was not a “crime of violence” under United States
Sentencing Guideline § 2L1.2(b)(1)(A)(ii). We agree, vacate the sentence, and remand for
resentencing.


        *
           The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.


                                                        1
No. 05-6354            United States v. Portela                                                    Page 2


                                                     I
        Portela stipulated to the facts against him, namely, that he possessed 500 or more grams of
cocaine with the intent to distribute it and that he was a removed alien found in the United States.
He also stipulated to a prior state-court conviction for “vehicular assault.” Under Tennessee law,
“[a] person commits vehicular assault, who, as the proximate result of the person’s intoxication . . .
recklessly causes serious bodily injury to another person by the operation of a motor vehicle.” Tenn.
Code Ann. § 39-13-106(a). Concluding that Portela’s Tennessee conviction was for a “crime of
violence,” the court enhanced his sentence by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (“If
the defendant previously was deported, or unlawfully remained in the United States, after—(A) a
conviction for a felony that is . . . (ii) a crime of violence . . . increase by 16 levels.”). The district
court rejected Portela’s argument that vehicular assault is not a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). On appeal, Portela renews this argument.
                                                    II
        We review a district court’s construction of the sentencing guidelines de novo. United States
v. Ibarra-Hernandez, 427 F.3d 332, 334 (6th Cir. 2005).
        The commentary to U.S.S.G. § 2L1.2(b)(1) states that “crime of violence”
        means any of the following: murder, manslaughter, kidnapping, aggravated assault,
        forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson,
        extortion, extortionate extension of credit, burglary of a dwelling, or any offense
        under federal, state, or local law that has as an element the use, attempted use, or
        threatened use of physical force against the person of another.
(emphasis added). To understand what crimes the italicized catch-all clause encompasses, we
consult cases examining 18 U.S.C. § 16(a), where identical language appears. See Leocal v.
Ashcroft, 543 U.S. 1, 6-7 (2004); see also United States v. Perez-Vargas, 414 F.3d 1282, 1286 n.3
(10th Cir. 2005) (noting the definition of “crime of violence” under 18 U.S.C. § 16 is, in relevant
part, “identical to the one found in USSG § 2L1.2”).
        In Leocal, 543 U.S. at 4, the Supreme Court considered whether the Florida crime of driving
under the influence of alcohol and causing serious bodily injury was a “crime of violence” under 18
U.S.C. § 16. It examined the statutory language of § 16(a) and noted that the word “use”—as in
“has as an element the use, attempted use, or threatened use”—“requires active employment.” Id.
at 9. In other words,
        [w]hile one may, in theory, actively employ something in an accidental manner, it
        is much less natural to say that a person actively employs physical force against
        another person by accident. Thus, a person would “use . . . physical force against”
        another when pushing him; however, we would not ordinarily say a person “use[s]
        . . . physical force against” another by stumbling and falling into him.
Id. Thus, this language “most naturally suggests a higher degree of intent than negligent or merely
accidental conduct,” id., and an offense (like the Florida offense in Leocal) that “does not require
proof of any particular mental state,” id. at 7, and that “appear[s] to require only proof that the
person acted negligently in operating the vehicle,” id. at 8, does not qualify as a “crime of violence”
under § 16(a). Id. at 10.
       As additional support, the Court cited § 101(h) of the Immigration and Nationality Act
(INA), which defines a “serious criminal offense,” in relevant part, as “(2) any crime of violence,
as defined in section 16 of title 18; or (3) any crime of reckless driving or of driving while
No. 05-6354              United States v. Portela                                                          Page 3


intoxicated or under the influence of alcohol or of prohibited substances if such crime involves
personal injury to another.” Id. at 12. Unwilling to believe that Congress included a redundant
provision in the INA, the Court concluded that the third clause must mean something different than
the second clause—this reinforced its conclusion that a DUI offense requiring only proof of
negligence is not a “crime of violence” under 18 U.S.C. § 16. Id.
       Left open by Leocal—and relevant here—is “whether a state or federal offense that requires
proof of the reckless use of force against a person or property of another qualifies as a crime of
violence under 18 U.S.C. § 16.” Id. at 13. Since Leocal, two of our sister circuits have held that it
does not.
        In Oyebanji v. Gonzales, 418 F.3d 260, 261 (3d Cir. 2005), the Third Circuit (per then-Judge
Alito) held that a New Jersey vehicular homicide conviction—which only required a mental        state
of recklessness—was not a conviction for a “crime of violence” under 18 U.S.C. § 16.1 See also
Singh v. Gonzales, 432 F.3d 533, 540 (3d Cir. 2006) (Pennsylvania offense of recklessly
endangering another person is not a crime of violence). The Third Circuit relied on Leocal’s
repeated statements that the “accidental” use of force does not satisfy 18 U.S.C. § 16. Oyebanji, 418
F.3d at 263-64; see also Leocal, 543 U.S. at 9-11.
        Similarly, in Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 445 (4th Cir. 2005), the Fourth
Circuit held that a drunk driver’s conviction for reckless involuntary manslaughter was not a “crime
of violence” conviction under 18 U.S.C. § 16. See also Garcia v. Gonzales, 455 F.3d 465, 469 (4th
Cir. 2006) (Reckless assault is not a “crime of violence” under § 16(a) because it “does not contain
an element that there be the intentional employment of physical force. . . .”). The Fourth Circuit
noted that Leocal’s reasoning regarding the “use” of force “strongly indicates that the result in
Leocal would have been the same even had a violation of the statute there at issue required
recklessness rather than mere negligence.” See Bejarano-Urrutia, 413 F.3d at 447.
        We now follow the “considered dicta” of Leocal, see United States v. Marlow, 278 F.3d 581,
588 n.7 (6th Cir. 2002), and the reasoning of our two sister circuits to hold that a crime requiring
only recklessness does not qualify as a “crime of violence” under 18 U.S.C. § 16. Because the
catch-all clause of U.S.S.G. § 2L1.2(b)(1) uses identical language, Portela’s conviction for reckless
vehicular assault is not a “crime of violence” under that clause, and because it is not, the district
court lacked support for its 16-level increase in Portela’s sentence.
         Nor can the 16-level increase be sustained, as the government argues, via the enumerated list
of crimes in § 2L1.2(b)(1). Though the government acknowledges that vehicular assault is not
listed, it urges the court to analogize to aggravated assault under Tenn. Code Ann. § 39-13-102(a)(2)
because “aggravated assault” is an enumerated offense under § 2L1.2(b)(1). But enumerated
offenses, not crimes analogous to enumerated offenses, trigger the enhancement. We reject this
attempt to “shoehorn[] [Portela’s crime] into statutory sections where it does not fit.” Leocal, 543
U.S. at 13.
                                                        III
        For these reasons, we vacate Portela’s sentence and remand for resentencing.



        1
          Although the parties in Oyebanji agreed that the crime did not fall under § 16(a), Oyebanji’s analysis of
§ 16(b)’s state of mind requirement applies equally to § 16(a). See Leocal, 543 F.3d at 11 (finding that § 16(a) and
§ 16(b) have the same mens rea requirement); Oyebanji, 418 F.3d at 263 (“[T]his concept is incorporated into both
subsections (a) and (b) of 18 U.S.C. § 16.”).
