           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT



                       No. 99-51199



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

     versus


MOISES   CHAPA-GARZA, also known as
Moises   Garza, also known as
Moises   Garza Chapa, also known as
Moises   G Chapa, also known as
Moises   Chapa,

                                      Defendant-Appellant.




                       No. 00-50049



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

     versus

JULIAN RICARDO GOYTIA-CAMPOS,
also known as Julian Ricardo
Goitia-Campos,

                                      Defendant-Appellant.
                     No. 00-50051



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

     versus

ALFONSO GUADALUPE PEREZ-VELAZQUEZ,
also known as Erick Lee,

                                     Defendant-Appellant.




                     No. 00-50107



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

     versus

FRANCISCO JAVIER SALDANA-ROLDAN,

                                     Defendant-Appellant.




                     No. 00-50239



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

     versus


EPIFANIO IVARBO-MARTELL,
also known as El Chino,


                            2
                                            Defendant-Appellant.



           Appeal from the United States District Court
                 for the Western District of Texas

                            March 1, 2001

Before GOODWIN1, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendants-appellants Moises Chapa-Garza, Julian Ricardo Goytia

Campos, Alfonso Guadalupe Perez Velazquez, Francisco Javier Saldana

Roldan and Epifanio Ivarbo-Martell appeal their sentences. We VACATE

their sentences and REMAND for resentencing.

                    Facts and Proceedings Below

     All five of the defendants-appellants pleaded guilty to unlawfully

being in the United States after removal therefrom, in violation of 8

U.S.C. § 1326(a).   For violating section 1326(a), U.S.S.G. § 2L1.2

provides for a base offense level of 8, with an increase of 16 offense

levels if removal from the United States was preceded by a conviction

for an “aggravated felony”.2   Application Note 1 of guideline 2L1.2


     1
      Circuit Judge of the Ninth Circuit, sitting by designation.
     2
      U.S.S.G. § 2L1.2 provides:
“§2L1.2   Unlawfully Entering or Remaining in the United States
     (a) Base Offense Level: 8
     (b) Specific Offense Characteristic
          (1) If the defendant previously was deported after a
               criminal conviction, or if the defendant unlawfully
               remained in the United States following a removal order
               issued after a criminal conviction, increase as follows
               (if more than one applies, use the greater):
               (A) If the conviction was for an aggravated felony,

                                  3
refers to 8 U.S.C. § 1101(a)(43) for the definition of “aggravated

felony”.3   Section 1101(a)(43) lists several examples of offenses

considered aggravated felonies. One of these, contained in section

1101(a)(43)(F),4 is a “crime of violence” as defined in 18 U.S.C. § 16.

18 U.S.C. § 16 provides:

     “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.”

Over appellants’ objections, the district courts applied guideline

2L1.2's 16 level increase, finding that Texas felony DWI5 was a crime of

violence as defined in 18 U.S.C. § 16(b). As a result, the sentence of



                       increase by 16 levels.
                 (B)   If the conviction was for (i) any other felony, or
                       (ii) three or more misdemeanor crimes of violence
                       or misdemeanor controlled substance offenses,
                       increase by 4 levels.”
     3
      Application Note 1 provides:
“1. For purposes of this guideline—
. . . .
‘Aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43) without regard
to the date of conviction of the aggravated felony.”
     4
      8 U.S.C. § 1101(a)(43) provides, in relevant part:
“(43) The term ‘aggravated felony’ means—
. . . .
     (F) 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;”
     5
      TEX. PENAL CODE ANN. § 49.09 provides that after two convictions for
violating section 49.04, Driving While Intoxicated, subsequent
convictions are third degree felonies instead of Class B misdemeanors.

                                    4
each appellant was considerably higher than it otherwise would have

been. At the time these appeals were taken, the sole issue raised by

each defendant was whether Texas felony DWI is “an aggravated felony”

under U.S.S.G. § 2L1.2(b)(1)(A). Because the issues were identical, the

cases were consolidated for oral argument.

     Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), was decided after

the defendants-appellants filed their opening briefs.       By a single

supplemental brief, the defendants-appellants each raise the same

Apprendi issue. 8 U.S.C. § 1326(a) provides that the maximum sentence

shall be a fine and/or imprisonment up to two years. Section 1326(b)(2)

increases the maximum penalty to a fine and/or imprisonment up to twenty

years if the removal of the defendant was preceded by a conviction for

an aggravated felony. The defendants-appellants’ sentences ranged from

41 to 57 months, all well above the section 1326(a) maximum.

Defendants-appellants argue that, under Apprendi, the statutory maximum

cannot be increased from two to twenty years unless the fact that

triggers the higher maximum sentence of section 1326(b)(2), a prior

aggravated felony conviction, is alleged in the indictment. Defendants-

appellants concede that their argument is foreclosed by Almendarez-

Torres v. United States, 118 S.Ct. 1219 (1998), and raise the issue in

this Court only to preserve the possibility of review by the United

States Supreme Court.

     Our disposition of these two legal issues will resolve all five

appeals.


                                   5
                              Discussion

                                  I.

     This Court reviews the district court’s interpretation of the

Sentencing Guidelines de novo and its application of the guidelines for

clear error. United States v. Cho, 136 F.3d 982, 983 (5th Cir. 1998).

Defendants-appellants’ sentences must be affirmed unless they were

imposed in violation of law or were based upon an erroneous application

of the Sentencing Guidelines. United States v. Velazquez-Overa, 100

F.3d 418 (5th Cir. 1996).

     18 U.S.C. § 16(b) is the only justification for the 16-level

enhancement advanced by the government. Section 16(b) provides that a

crime of violence is “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 government correctly observes that the words “by its

nature” require us to employ a categorical approach when determining

whether an offense is a crime of violence. Velazquez-Overa, 100 F.3d

at 420-21. This means that the particular facts of the defendant’s

prior conviction do not matter, e.g. whether the defendant actually did

use force against the person or property of another to commit the

offense. The proper inquiry is whether a particular defined offense,

in the abstract, is a crime of violence under 18 U.S.C. § 16(b).

     This is the second time a panel of this Court has been called upon

to decide the question of whether felony DWI is a crime of violence as


                                   6
defined by 18 U.S.C. § 16(b). In Camacho-Marroquin v. Immigration and

Naturalization Service, 188 F.3d 649 (5th Cir. 1999), withdrawn 222 F.3d

1040 (5th Cir. 2000), this Court held that felony DWI was a crime of

violence. However, Camacho-Marroquin moved to withdraw his petition for

rehearing en banc so that the Immigration and Naturalization Service

could deport him in lieu of incarceration.      As a result, the panel

withdrew its opinion. Camacho-Marroquin had held that felony DWI was

a crime of violence because of the substantial risk that drunk driving

will result in an automobile accident. Camacho-Marroquin, 188 F.3d at

652. The government agrees with this approach and urges that anytime

an offense involves a substantial risk of harm, even accidental harm,

that offense is a crime of violence.

     We disagree with the government’s proposed construction of section

16(b) for three reasons: 1) it requires that section 16(b) be construed

the same as U.S.S.G. § 4B1.2(a)(2), which now contains significantly

broader language;6 2) “substantial risk that physical force . . . may be

used” contemplates only reckless disregard for the probability that

intentional force may be employed; and 3) the physical force described

in section 16(b) is that “used in the course of committing the offense”,

not that force that could result from the offense having been committed.

                                  A.

     There are two possible constructions of the operative language of


     6
      Prior to the November 1, 1989, change, guideline 4B1.2, like the
current version of guideline 2L1.2 (via 8 U.S.C. § 1101(a)(43)(F)),
referred to 18 U.S.C. § 16 for the definition of “crime of violence”.

                                   7
18 U.S.C. § 16(b). The government urges that we interpret section 16(b)

the same way the Seventh Circuit interpreted U.S.S.G. § 4B1.2(a)(2) in

United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995).7 Under the

guideline 4B1.2(a)(2) standard, any offense that involves “pure

recklessness,” i.e. a conscious disregard of a substantial risk of

injury to others, is a crime of violence. The alternative reading is

that section 16(b) applies only when the nature of the offense is such

that there is a substantial likelihood that the perpetrator will

intentionally employ physical force against another’s person or property

in the commission thereof. The latter approach requires recklessness

as regards a substantial risk that intentional force will be utilized

by the defendant to effectuate commission of the offense.

     We begin by comparing the text of guideline 4B1.2(a)(2) with that

of section 16(b). Guideline 4B1.2(a)(2)’s “otherwise” clause contains

broader language than does section 16(b). Guideline 4B1.2(a)(2) only


     7
      U.S.S.G. § 4B1.2(a) provides:
“The term ‘crime of violence’ means 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 serious
     potential risk of physical injury to another.”
     In Rutherford, the Seventh Circuit held that drunk driving was a
crime of violence under guideline 4B1.2(a)(2) because it is “a reckless
act that often results in injury.” Rutherford, 54 F.3d at 376-77.
Rutherford’s prior conviction was not for simple felony DWI, but for
first degree assault. In Alabama (the jurisdiction of Rutherford’s
prior conviction), a person commits the offense of first degree assault
if, while driving under the influence of alcohol or drugs, he causes
bodily injury to another with a motor vehicle. Rutherford analyzed this
prior conviction as though it were merely for DWI. Id. at 376.

                                   8
requires that the offense involve conduct that poses a serious risk of

physical injury to another person. It does not require, as section

16(b) does, that there be a substantial risk that the defendant will use

physical force against another’s person or property in the course of

committing the offense.    Guideline 4B1.2(a)(2)’s otherwise clause

concerns only the risk of one particular effect (physical injury to

another’s person or property) of the defendant’s conduct. Section 16(b)

is focused on the defendant’s conduct itself, as there is no requirement

that there be a substantial risk that another’s person or property will

sustain injury, but only that there be a substantial risk that the

defendant will use physical force against another’s person or property

in the course of committing the offense.

     In United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir.

2000), this Court recognized the difference between section 16(b) and

guideline 4B1.2(a)(2). DeSantiago-Gonzalez was applying, to misdemeanor

DWI, the same guideline 4B1.2(a)(2) language that Rutherford applied to

felony DWI.8 More importantly, notwithstanding that DeSantiago-Gonzalez



     8
      Desantiago-Gonzalez, like the present case, involved an
enhancement under guideline 2L1.2. However, guideline 2L1.2 contains
two offense level increase options. The first is a 16 level increase
for an aggravated felony.       This is the increase applied to the
defendants-appellants. The second is a four level increase if the
defendant has a prior record that includes any other felony or three or
more misdemeanor crimes of violence or misdemeanor controlled substance
offenses. This was the enhancement at issue in Desantiago-Gonzales.
For purposes of the four level enhancement only, Application Note 1,
Clause 4 of guideline 2L1.2 expressly references guideline 4B1.2 for the
definition of a crime of violence.

                                   9
was decided before Camacho-Marroquin was withdrawn, Camacho-Marroquin

was not given

     “controlling effect because it was a deportation case wherein
     the applicable definition of ‘crime of violence’ was found
     at 18 U.S.C. § 16, which defines the term ‘crime of violence’
     in language similar to but not identical with the definition
     which controls the sentencing issue presented in this appeal
     found at U.S.S.G. § 4B1.2(a).”

DeSantiago-Gonzalez, 207 F.3d at 264.

     Effective November 1, 1989, the definition of crime of violence

under guideline 4B1.2(a)(2) was changed from a reference to section

16(b) to that which now appears.         This change counsels against

interpreting section 16(b) and guideline 4B1.2(a)(2) the same way.

     Besides the aforementioned reasons to interpret section 16(b)

differently than guideline 4B1.2(a)(2), we believe that the “substantial

risk that physical force . . . may be used” language in section 16(b)

refers only to those offenses in which there is a substantial likelihood

that the perpetrator will intentionally employ physical force. The

criterion that the defendant use physical force against the person or

property of another is most reasonably read to refer to intentional

conduct, not an accidental, unintended event. THE AMERICAN HERITAGE COLLEGE

DICTIONARY (3rd ed. 1997) defines the verb “use” as:

     “1. To put into service or apply for a purpose; employ. 2.
     To avail oneself of; practice: use caution. 3. To conduct
     oneself toward; treat or handle: used his colleagues well.
     4. To seek or achieve an end by means of; exploit: felt he
     was being used. 5. To take or consume; partake of: She
     rarely used alcohol.”

The four relevant definitions indicate that “use” refers to volitional,


                                    10
purposeful, not accidental, employment of whatever is being “used”. Our

understanding accords with the Third Circuit’s in United States v.

Parson, 955 F.2d 858 (3rd Cir. 1992).       Although Parson involved

interpretation of guideline 4B1.2(a)(2), the Third Circuit found it

necessary to discuss the history of the career offender guideline,

including a comparison of the pre November 1, 1989, language (which

referred to 18 U.S.C. § 16) and the current language:

     “[T]he second branch of the definition in section 16 covered
     only felonies that ‘by nature, involve[] a substantial risk
     that physical force . . . may be used,’ whereas the revised
     definition in the current Guideline’s second prong [§
     4B1.2(a)(2)] covers conduct that ‘presents a serious risk of
     physical injury.’
           At first blush, the difference in phrasing appears
     trivial because most physical injury comes from the use of
     physical force. But the distinction is significant. Use of
     physical force is an intentional act, and therefore the first
     prong of both definitions [section 16(a) and guideline
     4B1.2(a)(1)] requires specific intent to use force. As to
     the second prong of the original definition, a defendant’s
     commission of a crime that, by its nature, is likely to
     require force similarly suggests a willingness to risk having
     to commit a crime of specific intent. For example, a burglar
     of a dwelling risks having to use force if the occupants are
     home and hear the burglar. In such a case, the burglar has
     a mens rea legally nearly as bad as a specific intent to use
     force, for he or she recklessly risks having to commit a
     specific intent crime.
           In contrast, under the second prong of the revised
     definition, criminals whose actions merely risk causing
     physical injury may have a lower mens rea of ‘pure’
     recklessness: they may lack an intent, desire or willingness
     to use force or cause harm at all. For example, a parent who
     leaves a young child unattended near a pool may risk serious
     injury to the child, but the action does not involve an
     intent to use force or otherwise harm the child. Similarly,
     a drunk driver risks causing severe injury to others on the
     road or in the car, but in most cases he or she does not
     intend to use force to harm others. In this case, the crime
     of reckless endangering necessarily involves a serious risk
     of physical injury to another person, but not necessarily an

                                  11
     intent to use force against other persons.”

Id. at 866. This passage explains not only the proper construction of

section 16(b), but also highlights the material difference in scope

between it and guideline 4B1.2(a)(2). Accordingly, we refuse to read

section 16(b) as we do guideline 4B1.2(a)(2), and hold, consonant with

the ordinary meaning of the word “use,” that a crime of violence as

defined in 16(b) requires recklessness as regards the substantial

likelihood that the offender will intentionally employ force against the

person or property of another in order to effectuate the commission of

the offense.

                                   B.

     Another aspect of section 16(b) that bears upon the question of

whether felony DWI is a crime of violence is the requirement that the

physical force be applied “in the course of committing the offense”.

The meaning of these words is exemplified in this Court’s decision of

United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996). In

Velazquez-Overa, we held that the crime of indecency with a child

involving sexual contact was a crime of violence as defined in 18 U.S.C.

16(b) because it was likely that the perpetrator would find it necessary

to use physical force to “ensure the child’s compliance” and “perpetrate

the crime”.    Id. at 422.   Velazquez-Overa explicitly distinguished

guideline 4B1.2(a)(2) on this basis.

     “The definition of ‘crime of violence’ in the career offender
     provisions differs somewhat from that in 18 U.S.C. § 16. The
     touchstone of ‘violence’ in the career offender provisions
     is the risk that physical injury will result, rather than the

                                   12
     risk that physical force may be used to carry out the
     offense.”

Id. at 421 n.4. That section 16(b) refers only to that physical force

that may be used to perpetrate the offense is in harmony with its

requirement that the offender intentionally use the force against the

person or property of another.

                                  C.

     We turn now to the ultimate question we are called upon to decide.

While the victim of a drunk driver may sustain physical injury from

physical force being applied to his body as a result of collision with

the drunk driver’s errant automobile, it is clear that such force has

not been intentionally “used” against the other person by the drunk

driver at all, much less in order to perpetrate any crime, including the

crime of felony DWI. The crime of Texas felony DWI is committed when

the defendant, after two prior DWI convictions, begins operating a

vehicle while intoxicated. Intentional force against another’s person

or property is virtually never employed to commit this offense.

Accordingly, we hold that felony DWI is not a crime of violence as

defined by 18 U.S.C. § 16(b).

     In so holding, we are mindful that one of our prior opinions

contains dictum that is not inconsistent with the government’s view that

section 16(b) should be construed, as guideline 4B1.2 is, to embrace

crimes of simple recklessness. In United States v. Galvan-Rodriguez,

169 F.3d 217, 219 (5th Cir. 1999), this Court held that unauthorized use

of another’s motor vehicle, or joy riding, was a crime of violence as

                                   13
defined by section 16(b):

      “Just as burglary of a vehicle involves a substantial 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 become
      involved in an accident, resulting not only in damage to the
      vehicle and other property, but in personal injuries to
      innocent victims as well.
            It is true that, as argued by Galvan, the unauthorized
      use of a motor vehicle will not always result in physical
      force to persons or property, as, for example, when a child
      takes the family car ‘joyriding’ without parental consent;
      however, there is a strong probability that the inexperienced
      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 vandalism.” (footnote
      omitted).

Galvan-Rodriguez did not require us to resolve the issue presented in

the present appeal. Our resolution thereof is completely compatible

with the holding in Galvan-Rodriguez, as it cannot be doubted that there

is a substantial risk that physical force will be used against a vehicle

in order to obtain the unauthorized access to it that is necessary for

the commission of the offense of joy riding.

II.   The Apprendi Issue

      As the Apprendi issue was not raised below, we review only for

plain error. As explained below, we are unable to find error in this

respect, much less plain error.

      Appellants recognize that the Supreme Court has held that the

enhanced penalties contained in section 1326(b) were mere sentencing

factors and not elements of a separate offense. See Almendarez-Torres

v. United States, 118 S.Ct. 1219, 1226 (1998).      They point out that


                                   14
Justice Thomas, one of the five justices who joined in the Supreme

Court’s Almendarez-Torres opinion, may no longer support its holding.

See Apprendi, 120 S.Ct. at 2379. But no matter how much in doubt the

continuing viability of Almendarez-Torres may be, that decision is not

overruled unless and until the United States Supreme Court says it is.

State Oil v. Kahn, 118 S.Ct. 275, 284 (1997). Until then, as conceded

by the defendants-appellants, we are bound by Almendarez-Torres.

Therefore, we reject defendants-appellants’ argument that Apprendi

prevents them from being sentenced to a term of imprisonment of more

than two years.

                             Conclusion

     We hold that because intentional force against the person or

property of another is seldom, if ever, employed to commit the offense

of felony DWI, such offense is not a crime of violence within the

meaning of 18 U.S.C. § 16(b). Accordingly, we VACATE the defendants-

appellants’ sentences and REMAND for resentencing.

                        VACATED and REMANDED




                                  15
