U.S. v. Chapa-Garza: 5th Circuit Holds That Texas Felony DWI Is Not a Crime of Violence

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

U.S. V. CHAPA-GARZA: 5TH CIRCUIT HOLDS THAT TEXAS FELONY DWI IS NOT A CRIME OF VIOLENCE
Immigrants' Rights Update, Vol. 15, No. 2, Mar. 29, 2001

In an important victory for immigrants, their advocates, and for public defenders, the Fifth Circuit Court of Appeals has held that violating the Texas felony driving while intoxicated (DWI) statute is not a crime of violence. Hence, a felony DWI in Texas is not an "aggravated felony," which can trigger a substantial increase in the prison sentence of a person who is convicted of being in the United States unlawfully after having been removed from the U.S.

The case, U.S. v. Chapa-Garza, consolidates the cases of five defendants who violated the Texas felony DWI statute. The statute provides that if a person has been convicted of two Class B misdemeanor DWIs, any conviction for a subsequent DWI is a third degree felony. All the defendants also pled guilty to being in the U.S. unlawfully after having been removed from the U.S. A person convicted of this offense is sentenced under United States Sentencing Guideline (U.S.S.G.) section 2L1.2, which provides that this violation carries a base offense level of 8, with an increase of 16 offense levels if the person's removal from the U.S. was preceded by a conviction for an aggravated felony.

Under 8 U.S.C. section 1101(a)(43), an "aggravated felony" is a crime of violence for which the term of imprisonment is at least one year. If Texas felony DWI were held to be a crime of violence, conviction of it would be conviction of an aggravated felony, thus triggering the enhanced sentence under the U.S.S.G. In the case of each of the five appellants, the district courts had applied guideline 2L1.2's 16-level increase, finding that Texas felony DWI was a crime of violence as defined in 18 U.S.C. section 16(b). This section 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." In their appeals, the appellants argued that Texas felony DWI does not fit this definition.

The government urged the Fifth Circuit to interpret 18 U.S.C. section 16(b) the same way that the Seventh Circuit Court of Appeals interpreted U.S.S.G. section 4B1.2(a)(2) in U.S. v. Rutherford, 54 F.3d 370 (7th Cir. 1995). Under section 4B1.2(a)(2), a crime of violence is any crime that involves "'pure recklessness,' i.e. a conscious disregard of a substantial risk of injury to others." Comparing the language in 18 U.S.C. section 16(b) and guideline 4B1.2(a)(2), the Fifth Circuit found that the language of guideline 4B1.2(a)(2) is broader than that of section 16(b).

The court noted that, effective Nov. 1, 1989, the definition of "crime of violence" in guideline 4B1.2(a)(2) "was changed from a reference to section 16(b)" to the definition that now appears in the guideline. According to the court, "This change counsels against interpreting section 16(b) and guideline 4B1.2(a)(2) the same way."

Furthermore, the court held, the "substantial risk that physical force . . . may be used" language of 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 court found further support for this distinction in United States v. Parson, 955 F.2d 858 (3d Cir. 1992).

The Parson court contrasted section 16(b) with guideline 4B1.2(a)(2) and found that whereas section 16(b) covers felonies that, by their nature, involve a substantial risk that force may be used, the post-Nov. 1, 1989, sentencing guideline more broadly covers conduct that poses a serious risk of injury. The court found significant the difference in phrasing of the two different provisions. The definition in the sentencing guideline could include unintentional reckless behavior, while the definition in section 16(b) requires intentional acts of physical force.

Consistent with this reading of the statute, the Fifth Circuit also found that section 16(b) requires that, for an offense to be a crime of violence, physical force must have been applied in the course of committing the offense. It distinguished this requirement from that in guideline 4B1.2(a)(2), which simply requires that the offender's action result in physical injury to another party. Though a collision caused by an intoxicated driver may result in injury to a victim, the court reasoned, generally such a driver has not intentionally used force against the victim. Intoxicated drivers almost never intentionally use force against their victims; rather, a person commits Texas felony DWI when, after having been convicted twice previously of driving while intoxicated, he or she begins operating a vehicle while intoxicated. Since the elements of Texas felony DWI do not match those of "a crime of violence" under section 16(b), the Fifth Circuit held that Texas felony DWI is not a crime of violence.

U.S. v. Chapa-Garza, No. 99-51199 (5th Cir. Mar. 1, 2001).