                         REVISED MARCH 17, 2003
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                              No. 02-20697


                       UNITED STATES OF AMERICA,

                                                       Plaintiff – Appellee,


                                 VERSUS


                       JESUS RODRIGUEZ-RODRIGUEZ,

                                                   Defendant – Appellant.




             Appeal from the United States District Court
         for the Southern District of Texas, Houston Division
                           February 27, 2003




Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:

     Jesus Rodriguez-Rodriguez (“Rodriguez”) appeals his sentence

for illegal reentry after deportation.          The issue is whether the

Texas offenses of burglary of a building and unauthorized use of a

motor vehicle are crimes of violence under the 2001 version of

United      States     Sentencing         Guidelines       (“U.S.S.G.”)   §

2L1.2(b)(1)(A)(ii), requiring the enhanced sentence imposed on


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Rodriguez.            We hold that they are not.

             Rodriguez was deported from the United States in August 1995.

After being found in a Texas prison on June 29, 2000, he pleaded

guilty to a one-count indictment charging him with illegal reentry

in violation of 8 U.S.C. § 1326(a) and (b)(2).

             The    presentence      report    chronicled      Rodriguez’s   criminal

history, including Texas convictions of burglary of a building in

1990 and unauthorized use of a motor vehicle (“UUMV”) in 1993.

Classifying those offenses as crimes of violence, the probation

officer recommended a sixteen-level increase in Rodriguez’s base

offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Rodriguez

objected to the increase, contending that burglary of a building

and          UUMV    were   not   crimes      of    violence   for   purposes     of   §

2L1.2(b)(1)(A)(ii) and that an eight-level increase for having

committed a prior aggravated felony applied instead.                    The district

court overruled the objection and sentenced Rodriguez to seventy-

nine months’ imprisonment and three years’ supervised release.

Rodriguez filed a timely notice of appeal.

             We review this challenge to the district court’s application

of       §    2L1.2    de   novo.1      The   guidelines’      commentary    is   given

controlling weight in our review if it is not plainly erroneous or

inconsistent with the guidelines.2

     1
     United States v. Charles, 301 F.3d 309, 312–13 (5th Cir. 2002)
(en banc).
     2
             Id. at 312.

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          The   2001   version    of   §   2L1.2,   under   which    Rodriguez     was

sentenced, provides for a sixteen-point increase in the base

offense level if the defendant previously was deported after a

conviction for a felony that is a crime of violence.3                 According to

Application Note 1(B)(ii) of the commentary, “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

          (II)   includes  murder,   manslaughter, kidnapping,
          aggravated assault, forcible sex offenses (including
          sexual abuse of a minor), robbery, arson, extortion,
          extortionate extension of credit, and burglary of a
          dwelling.4

Because burglary of a building and UUMV are not among the offenses

enumerated in Application Note 1(B)(ii)(II), they are crimes of

violence only if they have as an element “the use, attempted use,

or       threatened    use   of   physical       force   against    the   person   of

another.”5        We need not discuss the facts underlying Rodriguez’s

convictions, “since we look only to the fact of conviction and the

statutory definition of the prior offense to determine whether a

prior conviction qualifies as a predicate offense for sentencing




     3
          See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2001).
     4
          Id. § 2L1.2, comment. (n.1(B)(ii)).
     5
     See United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.
2002).   Our cases recognize that burglary of a building and
burglary of a dwelling or habitation are distinct offenses. See,
e.g., United States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002);
United States v. Albert Jackson, 22 F.3d 583, 585 (5th Cir. 1994).

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enhancement purposes.”6

      Under Texas law, a person commits burglary of a building if,

without the effective consent of the owner, he:

      (1) enters a . . . building . . . not then open to the
      public, with intent to commit a felony, theft, or an
      assault; or (2) remains concealed, with intent to commit
      a felony, theft, or an assault, in a building . . . ; or
      (3) enters a building . . . and commits or attempts to
      commit a felony, theft, or an assault.7

And a   person   commits   UUMV   “if    he   intentionally     or   knowingly

operates another’s . . . motor-propelled vehicle without the

effective consent of the owner.”8        Although violent confrontations

may occur in the course of each offense, neither requires the

actual, attempted,    or   threatened     use   of   physical    force   as a

necessary element.9    Therefore, Rodriguez’s prior convictions of


  6
     United States v. Vargas-Duran, 319 F.3d 194, 196 (5th Cir.
2003) (internal quotation and citation omitted).
  7
      TEXAS PENAL CODE ANN. § 30.02(a) (West Supp. 2003).
  8
      TEXAS PENAL CODE ANN. § 31.07(a) (West 1994).
  9
     We have held in cases applying language identical to the
commentary accompanying § 2L1.2 that burglary of a building is not
a crime of violence as a categorical matter because the state need
not prove the use, attempted use, or threatened use of physical
force against the person of another to secure a conviction. See
Turner, 305 F.3d at 351(“The statutory elements of burglary of a
building do not make it a per se crime of violence, because they do
not necessarily involve use of physical force against the person of
another.” ); see also United States v. Rodriguez-Guzman, 56 F.3d
18, 20 (5th Cir. 1995) (“To obtain a conviction under the . . .
Texas burglary statutes, the state need not prove the use,
attempted use, or threatened use of physical force against the
person . . . of another.”). Thus, our categorical approach means
that Rodriguez is not eligible for a crime-of-violence enhancement
under § 2L1.2(b)(1)(A)(ii) even if his conviction was premised on
his entry of a building without the effective consent of the owner

                                   -4-
those offenses do not support a sixteen-level crime-of-violence

enhancement under § 2L1.2(b)(1)(A)(ii).

       In summary, then, we hold that the Texas offenses of burglary

of a building and UUMV are not crimes of violence within the

meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because neither offense is

listed in Application Note 1(B)(ii)(II) or has as an element the

use, attempted use, or threatened use of physical force against the

person of another. Accordingly, we vacate Rodriguez’s sentence and

remand the case for resentencing in the light of this opinion.10


and commission of an assault or other violent felony therein. This
is so because a sentencing court may not consider the conduct
underlying a prior conviction when applying § 2L1.2(b)(1)(A)(ii).
See U.S.S.G. § 2L1.2, comment. (n.1(B)(ii)); Vargas-Duran, 319 F.3d
at 196; see also Rayo-Valdez, 302 F.3d at 318 (recognizing that
“the § 2L1.2 definition has eliminated the possibility that a non-
enumerated crime risking use of physical force could qualify as a
‘crime of violence’”).
  10
     As Rodriguez conceded in the district court, his Texas
convictions trigger an eight-level aggravated-felony enhancement.
See U.S.S.G. § 2L1.2(b)(1)(C).       “For purposes of subsection
(b)(1)(C), ‘aggravated felony’ has the meaning given that term in
8 U.S.C. § 1101(a)(43), without regard to the date of conviction of
the aggravated felony.”    Id. § 2L1.2, comment. (n.2).     Section
1101(a)(43) provides that “aggravated felony” means, among other
things, “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 U.S.C. § 1101(a)(43)(F).
This court has held that both burglary of a building and UUMV are
per se crimes of violence under 18 U.S.C. § 16(b). See Rodriguez-
Guzman, 56 F.3d at 21 (burglary of a building); United States v.
Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999) (UUMV). Thus,
Rodriguez’s crimes do not qualify for § 2L1.2’s crime-of-violence
enhancement, but they are “crimes of violence” for purposes of §
2L1.2’s aggravated-felony enhancement. The confusion created by
having multiple definitions of the term “crime of violence” in the
United States Code and the Sentencing Guidelines has not escaped
this court’s notice. See United States v. Charles, 301 F.3d 309,
315–16 (5th Cir. 2002) (en banc) (DeMoss, J., specially

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               VACATED AND REMANDED.




concurring).

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