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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 4, 2004
FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III
Clerk
No. 03-20395
Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER JOEL VALENZUELA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:
Walter Joel Valenzuela pleaded guilty to illegal reentry
after deportation. The presentence report recommended a 16-level
increase in Valenzuela's base offense level under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) due to his prior Florida convictions for DUI/
manslaughter and DUI/bodily injury. Valenzuela objected, arguing
that his prior convictions were not crimes of violence under the
guidelines. The district court, based on the panel decision in
United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. 2003)
(Vargas-Duran I), overruled his objection and sentenced him to 87
months of imprisonment and three years of supervised release. He

timely appealed. Informed by the subsequent en banc decision in
United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004)
(Vargas-Duran II), and by an even more recent decision of this
court, United States v. Dominguez-Ochoa, ___ F.3d ___, No.
03-41260, 2004 WL 2101986 (5th Cir. Sept. 22, 2004), we vacate the
sentence and remand for resentencing.
Valenzuela contends that his offenses were not "crimes of
violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because, as defined
by Florida law, they neither (a) require the intentional use of
force, nor (b) qualify as an enumerated offense under the
Guidelines' definition of a "crime of violence" found in U.S.S.G.
§ 2L1.2, cmt. n. 1(B)(ii)(II) (2002). This court's en banc
decision in Vargas-Duran II settles the first contention in
Valenzuela's favor in this circuit. Applying the "categorical
approach" of Vargas-Duran II and its successor en banc case, United
States v. Calderon-Peña, 383 F.3d 254 (5th Cir. 2004), we must
conclude that the Florida DUI/bodily injury and DUI/manslaughter
statutes under which Valenzuela was convicted do not require the
intentional use of force. See FLA. STAT. § 316.193(3)(C)(2) and (3).
Subsection (c)(2) provides that if a defendant drives under the
influence of alcohol and causes "serious bodily injury" to another,
he is guilty of a third-degree felony. Subsection (c)(3)
criminalizes as DUI/manslaughter, a second-degree felony, a drunken
defendant's causing the death of another person. No mens rea of
intent is required under these provisions. The Eleventh Circuit
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has, it is true, held that the subsection (c)(2) offense is a crime
of violence under 18 U.S.C. § 16(a), see Le v. United States
Attorney General, 196 F.3d 1352 (11th Cir. 1999), but we are bound
by Vargas-Duran II and Calderon-Peña. Moreover, the Eleventh
Circuit's interpretation will be reviewed by the Supreme Court in
Leocal v. Ashcroft, No. 03-583, argued Oct. 12, 2004. See Leocal
v. Ashcroft, 124 S. Ct. 1405 (2004) (granting certiorari to the
unreported Eleventh Circuit decision).
Valenzuela's convictions also fail to qualify as
enumerated, generic manslaughter offenses for purposes of § 2L1.2.
This court's recent decision in Dominguez-Ochoa so held in regard
to a substantially similar Texas statute criminalizing negligent
manslaughter. See 2004 WL 2101986, at *8.
Only if the Supreme Court affirms the Eleventh Circuit in
Leocal in such a way as to undermine this court's authorities would
Valenzuela's sentence be upheld. The prudent course is for this
court to act upon our currently established precedents and allow
the government, or the district court on remand, to take the next
step.
VACATED and REMANDED for resentencing.
3