United States v. Jackson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10734
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHRISTOPHER RODRIGUEZ JACKSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
July 26, 2000
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Christopher Jackson pleaded guilty to being
a convicted felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He chal-
lenges the constitutionality of § 922(g)(1) and
application of the sentencing guidelines. We
affirm.
I.
Jackson contends that § 922(g)(1) is uncon-
stitutional but recognizes that we have rejected
the same challenge in United States v. Kuban,
94 F.3d 971 (5th Cir. 1996), and United States

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v. Rawls, 85 F.3d 240 (5th Cir. 1996). Ac-
cordingly, this issue has no merit.
II.
A.
Pursuant to U.S.S.G. § 2K2.1(a)(2), Jack-
son’s base offense level was set at 24 on ac-
count of two prior state-court convictions that
the court deemed to be “crimes of violence,”
namely two convictions for unauthorized use
of a vehicle (“UUV”) under TEX. PENAL CODE
§ 31.07. Jackson contends that the court erred
in classifying UUV as a “crime of violence” as
that term is defined in U.S.S.G. § 4B1.2.1
“We review a district court’s application of the
guidelines de novo.” United States v. DeSan-
tiago-Gonzalez, 207 F.3d 261, 263 (5th Cir.
2000).
Section 4B1.2(a) provides:
The term “crime of violence” means any
offense under federal or state law, pun-
ishable by imprisonment for a term ex-
ceeding one year, that SS
(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.
Application note 1 states:
“Crime of violence” includes murder,
manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery,
arson, extortion, extortionate extension
of credit, and burglary of a dwelling.
Other offenses are included as “crimes
of violence” if (A) that offense has as an
element the use, attempted use, or
threatened use of physical force against
the person of another, or (B) the con-
duct set forth (i.e., expressly charged) in
the count of which the defendant was
convicted involved use of explosives (in-
cluding any explosive material or de-
structive device) or, by its nature, pre-
sented a serious potential risk of physi-
cal injury to another.
UUV requires that a person (1) intention-
ally or knowingly operate (2) another’s boat,
airplane, or motor-propelled vehicle (3) with-
out the effective consent of the owner. See
TEX. PEN. CODE § 31.07. Because UUV does
not have as an element the use, attempted use,
or threatened use of physical force against the
person of another, § 4B1.2(a)(1) is not appli-
cable. The first clause of subsection (a)(2) is
likewise inapplicable, because UUV is not the
burglary of a dwelling, arson, or extortion; and
UUV does not involve the use of explosives.
Therefore, UUV is a “crime of violence” as
that term is defined in § 4B1.2(a) only if UUV
“presents a serious potential risk of physical
injury to another.” The court applied this “re-
sidual clause” in sentencing Jackson.
Before determining whether that sentencing
is correct, we must consider 18 U.S.C. § 16,
which also defines “crime of violence.”2 The
1 Application Note 5 to U.S.S.G. § 2K2.1
explicitly incorporates the § 4B1.2 definition of
“crime of violence.”
2 At one time, § 4B1.2 incorporated the 18
U.S.C. § 16 definition of “crime of violence.” See
(continued...)

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3
definition in § 16 differs in that it includes
force against property and uses slightly differ-
ent language:
The term “crime of violence” meansSS
(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 per-
son or property of another may be used
in the course of committing the offense.
The differences between the § 16(b) residual
clause and the § 4B1.2(a)(2) residual clause
are that (1) § 16 includes force against prop-
erty; (2) § 16 focuses on a risk of physical
force, whereas § 4B1.2(a) focuses on a risk of
physical injury; (3) § 16 includes the phrase
“by its nature,” whereas § 4B1.2(a) uses the
phrase “involves conduct that;” and (4) § 16
requires a “substantial risk,” whereas
§ 4B1.2(a) requires a “serious potential risk.”
The first of these differences is significant:
Section 16 explicitly includes risk to property,
whereas § 4B1.2(a) includes only risk to per-
sons. The second difference is less important,
because “in situations in which there is a sub-
stantial risk that physical force against a per-
son will be used, a serious potential risk of
physical injury may also exist.” United States
v. Kirk, 111 F.3d 390, 394 (5th Cir. 1997).
The third difference is significant, but is tem-
pered by application note 1 to § 4B1.2, which
restates the residual clause to require that “the
conduct set forth (i.e., expressly charged) in
the count of which the defendant was convict-
ed . . . by its nature, presented a serious poten-
tial risk of physical injury to another” (empha-
sis added). The fourth difference, the use of
“substantial” instead of “serious,” is immate-
rial: “[T]he definitions are substantially simi-
lar. Therefore, the reasoning employed in § 16
cases is persuasive authority for [§ 4B1.2
cases].” Kirk, 111 F.3d at 394.
B.
The parties dispute whether a court may
consider a defendant’s specific conduct in
making the § 4B1.2 “crime of violence” deter-
mination. In United States v. Fitzhugh, 954
F.2d 253, 254 (5th Cir. 1992), we held that
§ 4B1.2 does not allow a court to look beyond
the charging instrument to the defendant’s spe-
cific conduct:
[T]he Sentencing Commission made
clear that only conduct “set forth in the
count of which the defendant was con-
victed” may be considered in determin-
ing whether the offense is a crime of vi-
olence. . . . [Section] 4B1.2 does not
intend to define “crime of violence” by
reference to conduct underlying the of-
fense when the defendant is not charged
and convicted of such conduct. In
short, the Commission has repudiated
. . . cases which held that a sentencing
court can look beyond the face of the
indictment in considering this issue.
We applied Fitzhugh in United States v.
Ruiz, 180 F.3d 675 (5th Cir. 1999), in which
the defendant, who had pleaded guilty to es-
cape from the custody of a federal prison
camp, argued that the district court had erred
in concluding that his escape constituted a
“crime of violence” under § 4B1.2, because 2(...continued)
U.S.S.G. § 4B1.2 (1988).

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4
“he simply walked away from a prison camp
where no physical barriers prevented the es-
cape and no guards were armed.” Id. at 676.
We responded:
In United States v. Fitzhugh, we held
that the commentary to § 4B1.2 makes
“clear that only conduct ‘set forth in the
count of which the defendant was con-
victed’ may be considered in determin-
ing whether [an] offense is a crime of
violence.” Under Fitzhugh, we are pre-
cluded from looking to the underlying
facts of Ruiz’s conviction, as he
requests, because the circumstances to
which Ruiz directs our attention are not
mentioned in the indictment. The
indictment charges that Ruiz “knowingly
escape[d] from custody of [a federal
prison camp] . . . in which he was
lawfully confined.” . . . Every escape
scenario is a powder keg, which may . .
. explode into violence and result in
physical injury.
Id. at 676-77.
Fitzhugh and Ruiz dictate that we may not,
as Jackson requests, consider the specific con-
duct underlying his UUV convictions unless
that conduct were included in the charging in-
strument for those offenses. See also DeSan-
tiago-Gonzalez, 207 F.3d at 261 (holding that
the misdemeanor offense of driving while in-
toxicated is, as a categorical matter, a § 4B1.2
“crime of violence”). This rule avoids mini-
trials in which the government and the
defendant would have to “retry” past
convictions in the context of a sentencing
hearing. Unfortunately, panels of this court,
beginning with United States v. Jackson, 22
F.3d 583 (5th Cir. 1994), appear to have
overlooked Fitzhugh.
In Jackson, we held that the burglary of a
building is not a “crime of violence” within the
meaning of § 4B1.2 because it does not always
present the requisite risk, and the specific con-
duct of the defendant, as described in the pre-
sentence report, did not present the requisite
risk. Id. at 585. According to Fitzhugh/Ruiz,
we should have considered first the categorical
issue,3 then only whether the conduct
described in the charging instrument presented
the requisite risk.
In Kirk, we again considered the specific
conduct of a defendant in a § 4B1.2 analysis,
and we justified such consideration in a
footnote.
[U]nder 18 U.S.C. § 16, we [are]
compelled to apply a categorical
approach in determining crimes of
violence. The Sentencing Guidelines,
however, do not require such a
categorical approach. See Jackson, 22
F.3d at 585. Because we determine that
the specific conduct Kirk was convicted
of was a crime of violence we decline to
rule on whether a violation of [the
applicable statute] could be per se a
crime of violence under Sentencing
Guideline section 4B1.2.
Kirk, 111 F.3d at 395 n.8 (internal citation
omitted). In United States v. Claiborne, 132
3 Although Fitzhugh and Ruiz direct that a court
look to the charging instrument, that is unnecessary
if, as a categorical matter, the statutory elements of
a crime always present the requisite riskSSas a
matter of law, those elements are contained in the
charging instrument.

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5
F.3d 253, 256 n.3 (5th Cir. 1998), we again
followed Jackson, this time in dictum:4
In determining whether a defendant
committed a crime of violence for
purposes of U.S.S.G. § 4B1.2, we may
consider his specific conduct that
resulted in conviction [citing Kirk and
Jackson]. The underlying facts of Clai-
borne’s conviction for attempted
unauthorized entry are not set forth in
the briefs, but the presentence report
notes that he, accompanied by two men,
attempted to enter the inhabited
dwelling of a woman living in New
Orleans.
“[W]here two previous holdings or lines of
precedent conflict, the earlier opinion controls
and is the binding precedent.” Billiot v. Puck-
ett, 135 F.3d 311, 316 (5th Cir.), cert. denied,
525 U.S. 966 (1998) (internal quotation marks
omitted). Fitzhugh predates Jackson, and
therefore Fitzhugh is the law of this circuit.
C.
In United States v. Galvan-Rodriguez, 169
F.3d 217 (5th Cir.), cert. denied, 120 S. Ct.
100 (1999), an immigration case, we held that
UUV is a crime of violence under 18 U.S.C.
§ 16. Applying a categorical approach, and
defining “substantial risk” as requiring “a
strong probability that the event . . . will
occur,” we stated that
[j]ust as burglary of a vehicle involves a
substantial risk that property might be
damaged or destroy ed 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
. . . the unauthorized use of a 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. 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.
Galvan-Rodriguez holds that UUV’s risk to
persons and property is sufficiently high to
constitute a § 16 crime of violence. We have
also held that the misdemeanor crime of
driving while intoxicated (“DWI”) constitutes
a § 4B1.2(a)(2) crime of violence. See DeSan-
tiago-Gonzalez, 207 F.3d at 264. Pursuant to
this authority, we conclude that UUV’s risk to
persons is likewise sufficient to render UUV,
4 The consideration of specific conduct was
dictum, because we concluded that the crime at
issue, attempted unauthorized entry of an inhabited
dwelling, always presents the requisite risk. See
Claiborne, 132 F.3d at 256.

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6
as a categorical matter, a crime of violence
under § 4B1.2(a)’s residual clause.5
While Galvan-Rodriguez in part considered
the risks to property from UUVSSnamely that
a vehicle may be stripped, vandalized, or dam-
aged in a collisionSSour language that there is
a “substantial risk that the vehicle . . . might
become involved in an accident” and that
“there is a strong probability that the . . .
[UUV] driver . . . will be involved in or will
cause a traffic accident” indicates a sufficiently
high risk of personal injuries. See Galvan-
Rodriguez, 169 F.3d at 219. We are not un-
sympathetic 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, and our precedent dictates that
UUV’s risks are sufficient to satisfy the
§ 4B1.2 definition.
AFFIRMED.
ENDRECORD
5 Because we decide the issue as a categorical
matter, we need not consult the charging
instruments for Jackson’s UUV convictions.

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6 U.S.S.G. §4B1.2(a), Commentary, Application Note 1, in pertinent part, provides:
For purposes of this guideline– . . .”Crime of Violence” includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and
burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as
an element the use, attempted use, or threatened use of physical force against the person of another, or
(B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted
(continued...)
DENNIS, Circuit Judge, dissenting:
As the majority opinion observes, the Texas offense of unauthorized use of a vehicle “requires that
a person (1) intentionally or knowingly operate (2) another’s boat, airplane, or motor-propelled
vehicle (3) without the effective consent of the owner.” TEX. PENAL CODE ANN. § 31.07. I agree
with the majority that the Texas crime is not an offense 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, [or] involves use of explosives[.]” U.S.S.G. §4B1.2(a). I cannot agree with the
majority, however, that the Texas offense of unauthorized use of a vehicle is a state crime that
“otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.
In United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), this
court held that by amending U.S.S.G. §4B1.2 on November 1, 1989, the Sentencing Commission
made clear that only conduct “set forth in the count of which the defendant was convicted” may be
considered in determining whether the offense is a crime of violence. Section “4B1.2 does not intend
to define ‘crime of violence’ by reference to conduct underlying the offense when the defendant is
not charged and convicted of such conduct.” Id. at 254. As this court in Fitzhugh noted, “[t]his
interpretation is further supported by the 1991 amendments to the commentary to §4B1.2[,]” which
“now states that the term ‘crime of violence’ includes offenses where ‘the conduct set forth, (i.e.
expressly charged) in the count of which the defendant was convicted’ poses a substantial risk of
physical injury to another.”6 Id. at 255. Accordingly, “[t]he sentencing court should co nsider

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6(...continued)
involved use of explosives (including any explosive material or destructive device) or, by its nature,
presented a serious potential risk of physical injury to another.
7 Unlike U.S.S.G. §4B1.2(a) and its Commentary, 18 U.S.C. §16 defines “crime of violence” as including
“use of physical force against the . . . property of another” as well as against the person of another.
8
conduct expressly charged in the count of which the defendant was convicted, but not any other
conduct that might be associated with the offense.” Id. As the majority appears to acknowledge in
its footnote 2, U.S.S.G. §4B1.2 did not refer to the 18 U.S.C. § 16 definition of “crime of violence”
at the time of this court’s decision in Fitzhugh and does not now refer to that definition.7
I further agree with the majority that Fitzhugh is the law of this circuit and therefore trumps
subsequent conflicting panel opinions. See Maj.Op. at p. 5 (quoting Billiot v. Puckett, 135 F.3d 311,
316 (5th Cir.), cert. denied, 525 U.S. 966 (1998)).
Applying U.S.S.G. § 4B1.2(a), as explained by Fitzhugh, to the present case, I conclude that
Jackson’s Texas unauthorized use of vehicle offenses did not constitute “crimes of violence” under
that sentencing guideline. The conduct of which Jackson was expressly charged in connection with
the offenses did not pose a substantial risk of physical injury to another. The offenses as defined by
Texas law, viz., intentionally or knowingly operating another’s vehicle without the owner’s consent,
do not pose a substantial risk of physical injury to another.
If either United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5th Cir. 2000) or United States
v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 120 S. Ct. 100 (1999) is in conflict with
United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), it
must yield to the previous holding and precedent in Fitzhugh.

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In my view, DeSantiago and Galvan are legally and factually distinguishable from Fitzhugh and
the present case; and neither DeSantiago nor Galvan is controlling here. In Galvan, an alien was
charged with illegal entry into the United States and reentry following deportation in violation of 8
U.S.C. §§ 1325, 1326. Pursuant to U.S.S.G. §2L1.2, the probation officer recommended a 16 level
sentence enhancement because Galvan had been convicted of an aggravated felony: unauthorized use
of a motor vehicle. The sole issue on appeal in Galvan was whether unauthorized use of a motor
vehicle qualified as a crime of violence under 18 U.S.C. § 16, which includes any offense “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.” Galvan, 169 F.3d at 219 (emphasis added). Galvan
did not call for the application of U.S.S.G. §4B1.2(a), involving “conduct that presents a serious
potential risk of physical injury to another,” but applied U.S.S.G. §2L1.2 which refers to the broader
definition of crime of violence contained in 18 U.S.C. § 16. Galvan is also distinguishable from the
present case because the court in Galvan determined that “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[.]” Galvan, 169 F.3d at 220. Jackson was neither charged nor
convicted of illegal entry or unauthorized use of a vehicle as an illegal alien.
DeSantiago involved an alien who pleaded guilty to illegal reentry and who had three convictions
for driving while intoxicated (DWI). The probation officer recommended a four level sentence
enhancement because DeSantiago had committed three misdemeanor crimes of violence. Applying
U.S.S.G. §4B1.2(a), DeSantiago ruled that DWI was per se a crime of violence because it “involves
conduct that presents a serious potential risk of physical injury to another.” The court noted that the
fact that “drunk driving is inherently dangerous, is ‘well known and well documented.’” DeSantiago,

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207 F.3d at 264 (citing United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.), cert. denied, 516
U.S. 924 (1995)). On the other hand, it is not “well known and well documented” that the
unauthorized use of a vehicle always by its very nature “presents a serious potential risk of physical
injury to another.”
In summary, U.S.S.G. §4B1.2(a) as interpreted by Fitzhugh provides the correct principles of law
applicable to the present case. A proper application of those principles leads to the conclusion that
Jackson’s unauthorized use of a vehicle under Texas law did not constitute a “crime of violence.”
Therefore, the sentencing court erred in considering them as such in determining Jackson’s sentence.
Accordingly, Jackson’s sentence should be vacated and this case should be remanded for
resentencing.

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