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.

The Next SCOTUS ACCA Case? Fives Hold TX Fleeing-By-Vehicle Is ACCA Violent Felony, Deepening Circuit Split On Issue

United States v. Harrimon, No. 08-10690 (5th Cir. May 14, 2009) (Jones, Wiener, Benavides)

James, Begay, Chambers, Johnson, . . . Harrimon? Looks like we got us a convoy, as Harrimon contributes to yet another circuit split over whether a particular offense falls within the Armed Career Criminal Act's "violent felony" definition.

The felony offense in question: evading arrest or detention by use of a vehicle ("fleeing by vehicle" to its friends), in violation of Texas Penal Code § 38.04(a). The elements: "'(1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, (6) the attempted arrest or detention is lawful, and (7) the person uses a vehicle while . . . in flight.'"

The Government conceded that the offense lacks a force element; that it isn't burglary, arson, or extortion; and that it doesn't necessarily involve the use of explosives. Leaving the question: "whether it 'otherwise involves conduct that presents a serious potential risk of physical injury to another' under the 'residual' provision of clause (ii) of § 924(e)(2)(B)." Per Begay and Chambers, that's actually a two-part question that asks whether the offense in question is roughly similar to the enumerated violent felonies—burglary, arson, and extortion—"both (1) in kind [meaning purposeful, violent, and aggressive], and (2) in degree of risk posed (which must be at least a serious potential risk of physical injury to another)." Harrimon answers "yes" on both counts.

As for the in-kind similarity, the court

conclude[d] that fleeing by vehicle is purposeful, violent, and aggressive. First, it is purposeful: unlike the DUI statute at issue in Begay, fleeing by vehicle requires intentional conduct. Further, it is aggressive. “As commonly understood, aggressive behavior is offensive and forceful and characterized by initiating hostilities or attacks.” Fleeing by vehicle requires disregarding an officer’s lawful order, which is a clear challenge to the officer’s authority and typically initiates pursuit. This active defiance of an attempted stop or arrest is similar to the behavior underlying an escape from custody, which, as the Supreme Court noted in Chambers, is “less passive” and “more aggressive” than that likely underlying failure to report. Fleeing by vehicle is also violent: the use of a vehicle, usually a car, to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome. As the Seventh Circuit observed in Spells, not only the arresting officer or officers, but also pedestrians and other motorists are subject to this force. Further, fleeing by vehicle “will typically lead to a confrontation with the officer being disobeyed,” a confrontation fraught with risk of violence.

(cites fled). As the court notes, this analysis is in line with that of the Fourth, Seventh, and Tenth Circuits, but contrary to an Eleventh Circuit decision—United States v. Harrison—involving a Florida statute similar to Texas's. Harrison "held that 'disobeying a police officer’s signal and continuing to drive on, without high speed or reckless conduct, is not sufficiently aggressive and violent enough to be like the enumerated ACCA crimes,' and that '[i]t is not the deliberate kind of behavior associated with violent criminal use of firearms.'" Harrimon declined to follow Harrison's lead, because "[t]o our minds, an offender’s willingness to use a vehicle to flout an officer’s lawful order to stop shows 'an increased likelihood' that the offender would, if armed and faced with capture, 'deliberately point the gun and pull the trigger.'" (quoting Begay)

Which brings us to the risk question. Noting James's proviso “that [not] every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony[,]" the court

ha[d] no difficulty concluding that, in the ordinary case, fleeing by vehicle poses a serious risk of injury to others. While Harrimon argues that fleeing by vehicle does not become dangerous until law enforcement interrupts the perpetrator, fleeing by vehicle, by definition, can only occur after an initial attempt by an officer to arrest or detain the perpetrator. “This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders.”

Moreover, while it is possible, as Harrimon argues, to be guilty of fleeing by vehicle despite obeying all traffic laws and later surrendering quietly, we think that, in the typical case, an offender fleeing from an attempted stop or arrest will not hesitate to endanger others to make good his or her escape. [citing James and the Tenth Circuit]

(some more cites fled). But wait, there's also data. The court cites a DOJ-funded study that found an incidence of .04 injuries per police pursuit. Which should weigh against a holding that flight-by-vehicle presents a serious potential risk of physical injury, right? Wrong. The court also cites a study by the U.S. Fire Administration finding that there are "roughly .009 injuries per arson." Thus, according to the court, the risk of injury presented by flight-by-vehicle is roughly similar to that presented by arson.

Assuming the court's understanding and use of those studies is correct—and I'm no statistician; haven't even played one on TV—then isn't the court effectively saying that by "serious potential risk of physical injury" Congress meant "even a vanishingly small risk of physical injury?" After all, .04 injuries-per-chase is practially zero, and that's an order of magnitude greater than the .009 injuries-per-arson. And if that's true, then there's really only one question to answer under the Begay/Chambers analysis isn't there? Because an offense is similar in kind to burglary, arson, or extortion—that is, a purposeful, violent, and aggressive offense—will always present a risk of injury at least as great as the virtually zero risk of injury posed by arson, won't it?

I suppose we'll just have to see how things play out in light of Harrimon. It'll also be interesting to see whether this case winds up as the next chapter in the Supreme Court's repeated efforts to explain how to apply the residual clause, a distinct possibility given the circuit split. (I'd like to see a cert grant if for no other reason than the "Who's-on-first?" comedy sure to arise at oral argument from having Harrison and Harrimon on opposite sides of the split.)

Finally, what effect will Harrimon have on the Fifth Circuit's upcoming revisitation of the UUV-as-aggravated-felony issue? Recall that the Supreme Court remanded three cases presenting that issue for reconsideration in light of Chambers, that the U.S. Attorney in the Southern District of Texas has taken the position in those cases that UUV is not an aggravated felony in light of Begay and Chambers, and that the Solicitor General has asked for a GVR in yet another case in light of that concession. Note also that Harrimon's similar-in-kind analysis is a lot like the reasoning underlying the Fifth Circuit's holdings in the UUV cases. Then again, the issue in those cases is whether UUV presents a substantial risk that force will be used, as opposed to a serious potential risk that injury will occur. Apples and oranges, or two peas in a pod? When it comes to waiting for the answer, you'll pay for the whole seat, but you'll only need the edge.

Solicitor General Endorses View that UUV Is Not an Aggravated Felony, Seeks GVR In Serna-Guerra

Long-time readers of this blog, as well as those of you who handle immigration and illegal reentry cases, are familiar with the Fifth Circuit's frustrating adherence to its view that unauthorized use of a vehicle is an aggravated felony, notwithstanding Supreme Court decisions undermining the Fifth Circuit's reasoning. If you're not already familiar with the issue, you can get up to speed lickety split here, here, here, and here (in that order).

Anyhoo, Bender's Immigration Daily reports on a big development in Serna-Guerra v. Holder, which seeks cert to resolve this whole fooferaw. The Solicitor General's brief in response (available here) asks the Court to grant cert and remand to the Fifth Circuit for reconsideration in light of Chambers v. United States, just as the Court recently did in at least three other criminal cases:

Petitioner argues that this Court should grant plenary review because the Texas UUV offense of which he was convicted is not a “crime of violence” under 18 U.S.C. 16, and because the court of appeals’ decision upholding his removal conflicts with decisions of this Court and the United States Court of Appeals for the Tenth Circuit. In the alternative, petitioner argues that this Court should grant the petition for a writ of certiorari, vacate the decision of the court of appeals, and remand for further consideration in light of Chambers v. United States, 129 S. Ct. 687 (2009). The Court in Chambers held that a failure to report for weekend confinement is not a violent felony under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), because it does not present a serious potential risk of physical injury to another. Respondent agrees that the Court should grant, vacate, and remand in light of Chambers.

As petitioner notes, following the decision in Chambers, this Court granted certiorari, vacated the judgments below, and remanded for further consideration in three cases from the Fifth Circuit raising the same issue that petitioner raises here. See Castillo-Lucio v. United States, 129 S. Ct. 993 (2009); Armendariz-Moreno v. United States, 129 S. Ct. 993 (2009); Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009). The United States subsequently filed letter briefs in two of those three cases, informing the Fifth Circuit that, in light of Chambers and Begay v. United States, 128 S. Ct. 1581 (2008), which held that DUI is not a violent felony under the ACCA, the government no longer adheres to its prior position that UUV is a crime of violence under Section 16. See Letter from Tim Johnson, Acting U.S. Att’y, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Armendariz-Moreno, No. 07-40225 (Mar. 30, 2009); Letter from Tim Johnson, Acting U.S. Atty, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Castillo-Lucio, No. 07-40752 (March 30, 2009).

In light of the remands and the government’s change of position, the Fifth Circuit may well reconsider its prior rulings on the issue and bring itself into alignment with the Tenth Circuit. Plenary review of the issue by this Court would therefore be premature at this time. Instead, the Court should follow the same approach here that the Court took in Castillo-Lucio, Armendariz-Moreno, and Reyes-Figueroa.

(emphasis added; some extraneous cites pruned). Note the careful wording here. The SG doesn't explicitly concede the issue, but I thinks it's fair to characterize it as an endorsement of the position that the U.S. Attorney in Texas Southern has staked out in those other Chambers remands. Nevertheless, the fight's not won yet, so keep preserving the issue in your cases. And until then, the SG's brief is great fodder for an argument for non-Guidelines sentences in illegal reentry cases involving the issue.

UUV Circuit Split On Its Way To the Supreme Court?

As discussed here, here, and here, there's a post-Leocal circuit split over whether unauthorized use of a vehicle is a "crime of violence" under 18 U.S.C. § 16(b). And the odds of the Supreme Court resolving that split just got better. A couple of weeks ago the Fifth Circuit declined to reconsider the issue en banc, in Serna-Guerra v. Mukasey. Fortunately, four judges---including two who were on the panel---issued a dissent from the denial of rehearing that practically reads like a cert petition. Here's a couple of excerpts:

[O]ur 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.

* * *

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.

Of course, this isn't a guaranteed cert grant, but there's several factors in favor: 1) the split is clear, 2) the Fifth Circuit's position conflicts not only with another circuit, but with a Supreme Court decision, as well, 3) with this rehearing denial, it's clear that the Fifth Circuit isn't going to address the split on its own, 4) the issue affects both immigration and criminal cases, and the courts in the Fifth Circuit handle more of those cases than in any other circuit, except possibly the Ninth, and 5) in recent terms the Supreme Court has heard several cases involving interpretation of the 18 U.S.C. § 16 COV definition, as well as the similar "violent felony" definition from the ACCA. So unless there's some vehicle problem, Serna-Guerra certainly ought to show up on the Court's docket for OT09.