Fives Reverse Course on UUV, Hold It's Not an Aggravated Felony

United States v. Armendariz-Moreno, No. 07-40225 (5th Cir. June 15, 2009) (per curiam) (Reavley, Barksdale, Garza)

The UUV saga is at an end. In a tersely-worded opinion, the Fifth Circuit has ditched Galvan-Rodriguez:

On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of his prior conviction of unauthorized use of a motor vehicle in violation of Texas Penal Code § 31.07(a). As Armendariz conceded, the judgment was foreclosed by previous rulings of this circuit. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).

The Supreme Court has now granted certiorari and remanded for consideration in the light of Begay v. United States, 128 S.Ct. 1581 (2008) and Chambers v. United States, 129 S.Ct. 687 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct. It follows that the Armendariz sentence rests on a procedural error. The government agrees that the sentence must be vacated and the case remanded for resentencing.

Sentence Vacated. Case Remanded.

This is the correct result, but the reasoning is a little hard to follow, for a couple of reasons. First, this line—"The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct."—is essentially the holding of Galvan-Rodriguez, which the court necessarily concludes was wrongly decided.

Second, Begay and Chambers involved a slightly different definition than the one relevant here. The Begay/Chambers purposeful-violent-and-aggressive requirement is part of the "otherwise clause" in the ACCA's "violent felony" definition, which reaches felonies that "present[] a serious potential risk of physical injury to another[.]" In the UUV-as-aggravated-felony cases, on the other hand, the question is whether the felony "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense[,]" under 18 U.S.C. § 16(b). Nevertheless, the Supreme Court evidently took the view that Begay/Chambers apply to the 16(b) risk clause, and Armendariz-Moreno confirms that. This also means that UUV is neither an ACCA "violent felony," nor a §4B1.2 COV.