UUMV Not A Crime of Violence

No. 08-983
In the Supreme Court of the United States
JOSE ANGEL SERNA-GUERRA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney
General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
(I)
QUESTION PRESENTED
Whether the Texas offense of unauthorized use of a
motor vehicle qualifies as a “crime of violence” under 18
U.S.C. 16 and is therefore an “aggravated felony” under
8 U.S.C. 1101(a)(43)(F ).
(III)
TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TABLE OF AUTHORITIES
Cases:
Armendariz-Moreno v. United States, 129 S. Ct. 993
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Begay v. United States, 128 S. Ct. 1581 (2008) . . . . . . . . . . 5
Castillo-Lucio v. United States, 129 S. Ct. 993 (2009) . . . . 5
Chambers v. United States, 129 S. Ct. 687 (2009) . . . . . . 5, 6
Leocal v. Ashcroft, 543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . 3, 4
Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009) . . . 5
United States v. Sanchez-Garcia, 501 F.3d 1208 (10th
Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statutes:
Armed Career Criminal Act of 1984, 18 U.S.C.
924(e)(2)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. . . . 2
8 U.S.C. 1101(a)(43)(F) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
8 U.S.C. 1101(a)(43)(G) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
8 U.S.C. 1227(a)(2)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
18 U.S.C. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
Texas Penal Code Ann. § 31.07(a) (Vernon 2003) . . . . . . . . 2
IV
Miscellaneous: Page
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. Armendariz-Moreno, No. 07-40225 (Mar.
30, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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, No. 07-40752 (Mar. 30, 2009) . . . . . . . 5
(1)
In the Supreme Court of the United States
No. 08-983
JOSE ANGEL SERNA-GUERRA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-10a)
is not published in the Federal Reporter but is reprinted
in 285 Fed. Appx. 110. The orders of the Board of Immigration
Appeals (Pet. App. 11a-12a, 13a-15a) are unreported.
The decision of the immigration judge (Pet.
App. 16a-22a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
May 30, 2008. A petition for rehearing was denied on
November 3, 2008 (Pet. App. 23-30a). The petition for a
writ of certiorari was filed on February 2, 2009 (a Monday).
This Court’s jurisdiction is invoked under 28
U.S.C. 1254(1).
2
STATEMENT
1. Under the Immigration and Nationality Act
(INA), 8 U.S.C. 1101 et seq., an alien may be removed
from the United States if he has been convicted of an
“aggravated felony” at any time after his admission.
8 U.S.C. 1227(a)(2)(A)(iii). The INA defines the term
“aggravated felony” to encompass numerous categories
of offenses, including “a crime of violence (as defined in
section 16 of title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least
one year.” 8 U.S.C. 1101(a)(43)(F). Section 16, in turn,
defines a “crime of violence” as:
(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 person or property of another may be
used in the course of committing the offense.
18 U.S.C. 16. The term “aggravated felony” also includes
“a theft offense * * * for which the term of imprisonment
[is] at least one year.” 8 U.S.C.
1101(a)(43)(G).
2. Petitioner is a citizen of Mexico who was admitted
to the United States in 1983 as a lawful permanent resident.
In 1986, petitioner pleaded guilty in a Texas court
to the felony offense of unauthorized use of a vehicle
(UUV) in violation of Texas Penal Code § Ann. 31.07(a)
(Vernon 2003), which provides that “[a] person commits
an offense if he intentionally or knowingly operates another’s
* * * motor-propelled vehicle without the effective
consent of the owner.” Petitioner was sentenced
to five years of imprisonment, but that sentence was
3
suspended, and he was placed on five years of probation.
Pet. App. 14a, 18a.
3. In 2005, United States Immigration and Customs
Enforcement (ICE) brought removal proceedings
against petitioner based on the Texas conviction. ICE
charged petitioner with being removable under Section
1227(a)(2)(A)(iii) because, after his admission, he had
been convicted of an aggravated felony. ICE alleged
that petitioner’s crime of conviction is both a crime of
violence, under Section 1101(a)(43)(F ), and a theft offense,
under Section 1101(a)(43)(G). Pet. App. 16a-17a.
An immigration judge in San Antonio, Texas, ordered
that petitioner be removed. Pet. App. 16a-22a. The immigration
judge found that petitioner’s conviction for
UUV is an aggravated felony because it is both a crime
of violence and a theft offense. Id. at 18a-21a.
Petitioner appealed to the Board of Immigration Appeals
(Board), which dismissed the appeal. Pet. App.
13a-15a. The Board affirmed the immigration judge’s
determination that petitioner is removable under Section
1227(a)(2)(A)(iii) as an alien convicted of an aggravated
felony because the Texas UUV offense is a crime
of violence. Id. at 15a. The Board did not address whether
UUV is also a theft offense. See id . at 13a-15a.
Petitioner sought review of the Board’s removal order
in the United States Court of Appeals for the Fifth
Circuit. The Attorney General filed a motion to remand
the case to the Board for reconsideration in light of this
Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004),
which held that driving under the influence (DUI) is not
a crime of violence under 18 U.S.C. 16 because DUI involves
negligent conduct that does not constitute the
sort of violent, active crime to which Section 16 is directed.
Petitioner did not oppose the motion to remand.
4
Administrative Record (A.R.) 52-56. The court of appeals
remanded the case to the Board. Id. at 51.
On remand, the Board reaffirmed its prior ruling.
Pet. App. 11a-12a. Relying on Fifth Circuit precedent,
the Board concluded that the Texas offense of UUV is a
crime of violence under 18 U.S.C. 16 and that petitioner
therefore is removable as an aggravated felon. Pet.
App. 12a.
4. The court of appeals summarily affirmed the
Board’s ruling. Pet. App. 1a-10a. The court held that it
was bound by Fifth Circuit precedent to conclude that
UUV is a crime of violence under Section 16 and therefore
an aggravated felony under Section 1101(a)(43)(F ).
Id. at 1a-2a. Judge Jolly concurred in only that part of
the court’s opinion. Id. at 1a n.*. In the remainder of
the opinion, Judges Dennis and Prado urged the full
court to rehear the case en banc and to overrule the controlling
precedent. Id. at 2a-10a.
Petitioner sought rehearing en banc, but the court of
appeals denied his petition. Pet. App. 23a. Judge Dennis,
joined by Judges King, Wiener, and Prado, dissented
from the denial of rehearing en banc. Id. at 24a-
30a. The dissenting judges argued that the Fifth Circuit’s
precedent holding that the Texas UUV offense is
a “crime of violence” under Section 16 is incorrect and
conflicts with Leocal v. Ashcroft, supra, and United
States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir.
2007). See Pet. App. 24a-30a.
DISCUSSION
Petitioner argues (Pet. 7-15) 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’ deci5
sion 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
(Pet. 7-8, 13, 27, 28) 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 (Pet. 7-8), 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 Ap6
peals 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.
CONCLUSION
The petition for a writ of certiorari should be
granted, the decision of the court of appeals should be
vacated, and the case should be remanded for further
consideration in light of Chambers v. United States, 129
S. Ct. 687 (2009).
Respectfully submitted.
ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney
General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
MAY 2009