UNITED STATES of America, Plaintiff-Appellee, v. Christopher Rodriguez JACKSON, Defendant-Appellant, 220 F.3d 635

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 challenges the constitutionality of § 922(g)(1) and application of the sentencing guidelines. We affirm. I. Jackson contends that § 922(g)(1) is unconstitutional but recognizes that we have rejected the same challenge in United States v. Kuban, 94 F.3d 971 (5th Cir.1996), and United States v. Rawls, 85 F.3d 240 (5th Cir.1996). Accordingly, this issue has no merit. II. A.

Pursuant to U.S.S.G. § 2K2.1(a)(2), Jackson’s base offense level was set at 24 on account 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. “We review a district court’s application of the guidelines de novo.” United States v. DeSantiago-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, punishable by imprisonment for a term exceeding one year, 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, 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 conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted 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. UUV requires that a person (1) intentionally or knowingly operate (2) another’s boat, airplane, or motor-propelled vehicle (8) without 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)(

l) is not applicable. 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 § 4B 1.2(

a) only if UUV “presents a serious potential risk of physical injury to another.” The court applied this “residual 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.” The definition in § 16 differs in that it includes force against property and uses slightly different language: The term “crime of violence” means— (

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. The differences between the § 16(

b) residual clause and the § 4B1.2(a)(2) residual clause are that (1) § 16 includes force against property; (2) § 16 focuses on a risk of physical force, whereas § 4B 1.2(

a) focuses on a risk of physical injury; (3) § 16 includes the phrase “by its nature,” whereas § 4B 1.2(

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 persons. The' second difference is less .important, because “in situations in which there is a substantial risk that physical force against a person 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 tempered 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 convicted ... by its nature, presented a serious potential risk of physical injury to another” (emphasis added). The fourth difference, the use of “substantial” instead of “serious,” is immaterial: “[T]he

definitions are substantially similar. 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” determination. 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 specific conduct: [T]he 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.

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 escape 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 “he simply walked away from a prison camp where no physical barriers prevented the escape 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 convicted’ may be considered in determining whether [an] offense is a crime of violence.” Under Fitzhugh, we are precluded 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 eseape[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 conduct underlying his UUV convictions unless that conduct were included in the charging instrument for those offenses. See also DeSantiago-Gonzalez, 207 F.3d at 261 (holding that the misdemeanor offense of driving while intoxicated 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 conduct of the defendant, as described in the presentence report, did not present the requisite risk. Id. at 585.

According to Fitzhugh/Ruiz, we should have considered first the categorical issue, 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 F.3d 253, 256 n. 3 (5th Cir.1998), we again followed Jackson, this time in dictum. 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 Claiborne’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. Puckett, 135 F.3d 311, 316 (5th Cir.), cert. denied, 525 U.S. 966, 119 S.Ct. 413, 142 L.Ed.2d 336 (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, — U.S. -, 120 S.Ct. 100, 145 L.Ed.2d 85 (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 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.

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 DeSantiago-Gonzalez, 207 F.3d at 264.

Pursuant to this authority, we conclude that UUV’s risk to persons is likewise sufficient to render UUV, as a categorical matter, a crime of violence under § 4B1.2(a)’s residual clause. While Galvan-Rodriguez in

part considered the risks to property from UUV— namely that a vehicle may be stripped, vandalized, or damaged in a collision—our 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 unsympathetic 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. . Application Note 5 to U.S.S.G. § 2K2.1 explicitly incorporates the § 4B1.2 definition of “crime of violence." . At one time, § 4B1.2 incorporated the 18 U.S.C. § 16 definition of “crime of violence.” See U.S.S.G. § 4B1.2 (1988). .

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 risk'—as a matter of law, those elements are contained in the charging instrument. . 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. .

Because we decide the issue as a categorical matter, we need not consult the charging instruments for Jackson’s UUV convictions.