        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                               November 3, 2008

                                 No. 07-60634                Charles R. Fulbruge III
                                                                     Clerk

JOSE ANGEL SERNA-GUERRA

                                           Petitioner
v.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL

                                           Respondent



                    On Petition for Review from an Order
                     of the Board of Immigration Appeals


                ON PETITION FOR REHEARING EN BANC
              (Opinion May 30, 2008, 5th Cir., 285 F. App’x 110)

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:
      Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is DENIED. The court having been
polled at the request of one of the members of the court and a majority of the
judges who are in regular active serve and not disqualified not having voted in
favor (Fed. R. App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is
DENIED.
                                  No. 07-60634

JAMES L. DENNIS, Circuit Judge, joined by KING, WIENER and PRADO,
Circuit Judges, dissenting from the denial of rehearing en banc:
      Petitioner Jose Angel Serna-Guerra, a permanent resident alien, was
convicted twenty-two years ago of committing the Texas crime of unauthorized
use of a vehicle (“UUV”). He is now subject to removal because we have
categorized that offense as a “crime of violence.” See Brieva-Perez v. Gonzales,
482 F.3d 356 (5th Cir. 2007); United States v. Galvan-Rodriguez, 169 F.3d 217
(5th Cir. 1999). However, our continued classification of UUV as a crime of
violence directly conflicts with the Supreme Court’s decision in Leocal v.
Ashcroft, 543 U.S. 1 (2004). Moreover, the Tenth Circuit has concluded that our
decisions are contrary to Leocal and held that an indistinguishable offense under
Arizona law is not a crime of violence. See United States v. Sanchez-Garcia, 501
F.3d 1208 (10th Cir. 2007). By failing to rehear this case en banc, the court has
chosen not to correct this error in our jurisprudence and has unnecessarily
prolonged our disagreement with the Tenth Circuit. I therefore respectfully
dissent from the denial of rehearing en banc.
      The definition of “crime of violence” includes “any . . . 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.” 18 U.S.C. § 16(b). A person commits UUV under Texas
law “if he intentionally or knowingly operates another’s boat, airplane, or motor-
propelled vehicle without the effective consent of the owner.” Tex. Pen. Code §
31.07(a). We first classified UUV as a crime of violence in Galvan-Rodriguez,
where despite noting that some instances of UUV present no risk of physical
force being used against persons or property, the panel summarily concluded
that “the unauthorized use of a vehicle. . . 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

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property, but in personal injuries to innocent victims as well.” 169 F.3d at 219.
The panel elaborated:
       [T]here is a strong probability that the inexperienced or
       untrustworthy driver who has no pride in ownership in the vehicle
       will be involved in or will cause a traffic accident or expose the car
       to stripping or vandalism. In fact, when an illegal alien operates a
       vehicle without consent, a strong probability exists that the alien
       may try to evade the authorities by precipitating a high-speed car
       chase and thereby risking the lives of others, not to mention
       significant damage to the vehicle and other property.

Id. at 219-20.      Thus, the panel concluded that UUV is a “crime of violence”
because physical force might result from the commission of the offense – not
because the elements of the offense naturally involve a substantial risk that
physical force will be used against persons or property.1
       Galvan-Rodriguez’s reasoning and holding are untenable after the
Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the
Court held that driving under the influence of alcohol does not constitute a crime
of violence under § 16. Id. at 11-13. The Court reasoned that § 16(a) “most
naturally suggests a higher degree of intent than negligent or merely accidental
conduct” and concluded that § 16(b) “does not . . . encompass all negligent
misconduct, such as the negligent operation of a vehicle. It simply covers


       1
           Galvan-Rodriguez was the subject to two subsequent decisions in this circuit, both
critical of its reasoning and holding. In United States v. Jackson, 220 F.3d 635 (5th Cir. 2000),
the panel considered whether UUV is a “crime of violence” under former Guidelines § 4B1.2(a),
which used a slightly different definition of the term than § 16(b) because the former did not
account for force against property. The majority, concluding that Galvan-Rodriguez was
decisive, admitted that “we are not unsympathetic to Jackson’s argument that [UUV] is not
what one might typically consider a ‘crime of violence,’ but we do not write on a clean slate.”
Id. at 639. Later, in United States v. Charles, 301 F.3d 309 (5th Cir. 2002) (en banc), the en
banc court overruled Jackson, holding that UUV was not a crime of violence under § 4B1.2(a).
We reasoned that although the perpetrator’s conduct may present a risk of injury to property,
i.e., the automobile, such conduct does not present a serious risk of physical injury to another
person as required by § 4B1.2(a). Id. at 314. The court declined to consider Galvan-
Rodriguez’s in other contexts, such as § 16 cases. Nonetheless, Charles demonstrates our
court’s uneasiness with Galvan-Rodriguez, even pre-dating Leocal.

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offenses that naturally involve a person acting in disregard of the risk that
physical force might be used against another in committing an offense.” Id. at
9-10. Thus, “[t]he reckless disregard in § 16 relates not to the general conduct
or to the possibility that harm will result from a person’s conduct, but to the risk
that the use of physical force against another might be required in committing
a crime.” Id. The Court emphasized that “[t]he risk that an accident may occur
when an individual drives while intoxicated is simply not the same thing as the
risk that the individual may ‘use’ physical force against another in committing
the DUI offense.” Id. at 10 n.7. Because the DUI offense did not, by its nature,
pose a substantial risk that the perpetrator would use physical force in its
commission (as opposed to the possible results of committing the crime), the
court found that DUI offense at issue was not a “crime of violence.” Id. at 10 n.7
& 11.
        Leocal repudiated the reasoning in Galvan-Rodriguez for finding UUV a
crime of violence, namely our conclusion that conduct that might occur as a
result of using a vehicle without authority poses a “substantial risk” of physical
force. Instead, Leocal requires consideration of whether the commission of the
offense “naturally involve[s]” a substantial risk of harm, that is, whether the
offense involves a “reckless disregard . . . to the risk that the use of physical force
against another might be required in committing a crime.” Leocal, 543 U.S. at
10. The Texas UUV offense does not, by its elements, entail a reckless disregard
to the risk that physical force might be required to commit the crime. Indeed,
the offense criminalizes a broad range of conduct, such as joyriding or violating
a rental agreement, that does not present any risk of physical force being used
against persons or property.2 It is also difficult see how the facially innocuous


        2
        For example, Texas courts have convicted defendants under the statute for such things
as operating a vehicle beyond the time allotted by the vehicle’s owner, see Coleman v. Texas,
No. 11-06-00155-CR, 2008 WL 97051 (Tex. App. Jan. 10, 2008); Wilborn v. Texas, No. 12-06-

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                                        No. 07-60634

crime of UUV poses a greater risk of physical force than driving under the
influence.
       Our decision not to rehear this case also prolongs an unnecessary
disagreement with the Tenth Circuit, which correctly concluded in Sanchez-
Garcia that an indistinguishable offense under Arizona law is not a crime of
violence. The defendant in Sanchez-Garcia had been convicted of UUMT, which
a person commits under Arizona law “‘if, without intent permanently to deprive,
the person . . . [k]nowingly takes unauthorized control over another person’s
means of transportation.” Sanchez-Garcia, 501 F.3d at 1209 (quoting Ariz. Rev.
Stat. § 13-1803(A)(1) (alterations in original)).3 The Tenth Circuit observed that
“[l]ike any offense involving the unauthorized taking of property, it is clear there
is some chance that destructive or violent force might be employed in the
commission of UUMT when a person initially takes unauthorized control over
a means of transportation.” 501 F.3d at 1213. But the Tenth Circuit concluded
that such risks are not “substantial” because UUMT “encompasses a broad range
of conduct that does not present any risk of such force being used” such as
driving a rental vehicle past the expiration of the rental agreement, borrowing

00258-CR, 2007 WL 2381376 (Tex. App. Aug. 22, 2007); Bradford v. Texas, No. 07-02-0237-CR,
2003 WL 21501968 (Tex. App. Jul. 1, 2003); exchanging money and tickets with an employee
at a car rental company to use vehicles without an authorized rental agreement, see Roy v.
Texas, 161 S.W.3d 30 (Tex. App. 2004); taking another’s keys and using the vehicle without
permission, see Johnson v. Texas, No. 05-92-00385-CR, 1994 WL 279803 (5th Cir. Jun. 23,
1994); and obtaining possession of a vehicle under false pretenses, see Nance v. Texas, 647
S.W.2d 660 (Tex. App. 1983) (although the court reversed the conviction based on a separate
evidentiary issue, it concluded that the evidence was sufficient to support the UUMV
conviction); none of which present any risk of physical force being used.
       3
         The essential elements of the Texas UUMV offense and the Arizona UUMT offense
are virtually identical. Compare Ariz. Rev. Stat. § 13-1803(A)(1) (prohibiting (1) knowingly
taking control, (2) without authorization, (3) of another person’s means of transportation), with
Tex. Pen. Code § 31.07 (prohibiting (1) the intentional or knowing operation, (2) without the
effective consent of the owner, (3), of another’s motor-propelled vehicle). Although the Arizona
statute has an additional phrase (“without intent to permanently deprive”) that does not
appear in the Texas statute, the phrase is not an affirmative element of the offense. See State
v. Kamai, 911 P.2d 626, 628 (Ariz. App. 1995).

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                                        No. 07-60634

a car that he or she knows is stolen, or taking another’s keys and going joyriding.
Id. The Tenth Circuit considered but rejected our decision in Galvan-Rodriguez,
finding that it relied on unsupported conjecture and conflicts with Leocal. Id. at
1214.4
       We are bound by the Supreme Court’s decisions and therefore have an
obligation to correct panel rulings that conflict with its instructions. See Rivers
v. Roadway Express, Inc., 511 U.S. 298, 312 (1994); Thurston Motor Lines, Inc.
v. Jordan K. Rand, Ltd., 460 U.S. 533 (1983). There is also an overarching
interest in maintaining the uniformity of federal immigration laws and
consistency in their enforcement. Bustamante-Barrera v. Gonzales, 447 F.3d
388, 399 (5th Cir. 2006); Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir.
2002). Rehearing this case would serve those purposes, yet the majority of the
court has chosen to allow our erroneous classification of UUV as a crime of
violence to continue. Accordingly, I dissent from the denial of rehearing en banc.




       4
          In Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007), the panel attempted to
reconcile Galvan-Rodriguez with Leocal. The panel concluded that an offense can be a crime
of violence under Leocal even in the absence of an element requiring intentional use of force
because “Leocal requires [only] that the nature of the offense involves a substantial risk of the
intentional use of force.” 482 F.3d at 360-61. Apparently relying on Galvan-Rodriguez’s finding
that UUV naturally involves such a substantial risk, the panel held that Leocal is therefore
consistent with Galvan-Rodriguez. Id. at 361. However, as discussed above and as the Tenth
Circuit recognized, the reasoning in Galvan-Rodriguez -- which relied on the possible incidental
effects of committing the crime -- conflicts with Leocal’s holding that a crime is “violent” only
if the risk is inherent in the commission of the crime itself. The petitioner in Brieva did not
petition the Supreme Court for a writ of certiorari.

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