Fifth Circuit Erroneously Holds That Unauthorized Use of a Vehicle (aka Joyriding) Is Still an Aggravated Felony post-Leocal
Anyone who has dealt with the definition of "aggravated felony" found in 8 U.S.C. § 1101(a)(43) knows just how ridiculously overbroad it is. The problem is compounded when courts misinterpret the definition and find things to be aggravated felonies which aren't. One of the more notable examples is the Fifth Circuit's opinion in United States v. Galvan-Rodriguez, which held that the Texas offense of unauthorized use of a vehicle (Penal Code § 31.07), which consists of "intentionally or knowingly operat[ing] another's boat, airplace, or motor-propelled vehicle without the effective consent of the owner[,]" constitutes a "crime of violence" for aggravated felony purposes. Unfortunately, Brieva-Perez perpetuates Galvan-Rodriguez's erroneous construction of the aggravated felony definition with regard to UUV, notwithstanding the reasoning of a recent Supreme Court decision that would appear to compel the opposite result.
Galvan-Rodriguez held that UUV is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which includes "crimes of violence" as that term is defined in 18 U.S.C. § 16. 169 F.3d 217, 219-20 (5th Cir. 1999). 18 U.S.C. § 16(b), in turn, defines the term "crime of violence" to include felony offenses that by [their] nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Galvan-Rodriguez concluded that UUV satisfies the definition in § 16(b) because of the potential for the offense to result in damage to property or injury to people:
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.
Id. at 219 (citation omitted).
The Supreme Court later rejected this result-oriented interpretation of § 16(b) in Leocal v. Ashcroft, 543 U.S. 1 (2004). Leocal involved the question whether the Florida offense of DUI causing bodily injury (which "does not require proof of any particular mental state") constitutes a crime of violence under 18 U.S.C. § 16. The Court concluded that it does not, holding that
§ 16(b) plainly does not encompass all offenses which create a "substantial risk" that injury will result from a person’s conduct. The "substantial risk in § 16(b) relates to the use of force, not to the possible effect of the person’s conduct. The risk that an accident may occur when an individual drives while intoxicated is simply not the same think as the risk that the individual may "use" physical force against another in committing the DUI offense.
543 U.S. 1, 10 n.7 (2004) (citations omitted).
Because Leocal expressly rejected the result-oriented, risk-of-harm reasoning that was critical to Galvan-Rodriguez's holding, it would sure seem that UUV should no longer qualify as an aggravated felony.
Nevertheless, in a largely conclusory analysis, Brieva-Perez holds that "Leocal is fully consistent with this court's construction of the Texas UUV Statute in Galvan-Rodriguez." Slip op. at 7. Brieva-Perez reasoned that Leocal's interpretation of § 16(b) as "requir[ing] a substantial risk of intentional use of force . . . does not mean that a statute must have an element of intent to cause harm to another's person or property to be considered a crime of violence under § 16." Id.
It's true that § 16(b) doesn't require an intent to harm, but that's beside the point. The flaw of Galvan-Rodriguez is that it focuses on results rather than acts, and under Leocal the question is whether the offense entails a substantial risk of a forceful act, not whether there's a risk of a forceful result. (Not to mention the fact that even if the harms identified in Galvan-Rodriguez necessarily require the intentional use of physical force, the potential for such force is more speculative than substantial.) Hopefully Brieva-Perez won't be the last word on this issue.