[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              February 7, 2008
                              No. 07-12200                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 06-00454-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JUAN CARLOS ALFARO-GRAMAJO,
a.k.a. Juan Manuel Monterosa,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                             (February 7, 2008)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Juan Carlos Alfaro-Gramajo appeals his 37-month sentence imposed
following his guilty plea for re-entry into the United States after deportation

without permission, in violation of 8 U.S.C. § 1326. He argues that the district

court erred in enhancing his base offense level under the Sentencing Guidelines

pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2006) predicated on a previous Texas

conviction for burglary of a vehicle. We AFFIRM.

                                 I. BACKGROUND

      The investigation prior to Alfaro-Gramajo’s sentencing hearing revealed the

following: A Texas highway patrol officer had observed a vehicle being driven

without a registration tag. When the officer pulled the vehicle over, the driver had

said that he did not have a driver’s license, but had handed the officer a Tennessee

identification card issued in the name of Arturo Navarrete. A check of the

identification card revealed that the person to whom the card had been issued had

also been issued a driver’s license, but when the officer asked the driver if his

name was really Arturo Navarrete, he stated that his name was actually Juan

Manuel Monteroso. During a later interview with the driver, it became clear that

the driver’s true identity was Juan Carlos Alfaro-Gramajo. The officer also

determined that Alfaro-Gramajo had been deported in 2005 and had reentered the

United States without authorization.

      In calculating the proper guideline sentence, the probation office assigned



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Alfaro-Gramajo a base offense level of eight, pursuant to U.S.S.G. § 2L1.2(a). It

then applied an eight-level increase pursuant to § 2L1.2(b)(1)(C), because it

determined that Alfaro-Gramajo had been convicted of an aggravated felony in

Texas: burglary of a vehicle. The subtraction of three levels for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a), (b), resulted in a total offense level

of 13. Alfaro-Gramajo’s criminal history category was VI. This gave him a

guideline range of 33 to 41 months of imprisonment. The probation office

recommended a sentence of 37 months.

      Alfaro-Gramajo objected to the eight-level increase pursuant to

§ 2L1.2(b)(1)(C), arguing that his state conviction for burglary of a vehicle was not

an aggravated felony. At the sentencing hearing, the district court heard arguments

on whether burglary of a vehicle was an aggravated felony. Alfaro-Gramajo, citing

Ninth Circuit caselaw, argued that the offense was not an aggravated felony. The

government responded that the offense was a crime of violence because it involved

a substantial risk that physical force might be used against the person or property

of another. The government further argued that the 16-level enhancement under

U.S.S.G. § 2L1.2(a)(1)(A) ought to apply.

      The government also submitted into evidence the indictment related to the

Texas offense. The indictment charged that Alfaro-Gramajo “did unlawfully,



                                           3
knowingly and intentionally break into and enter a vehicle, without the effective

consent of . . . the owner thereof, with the intent to commit theft[.]” R.Exh., Gov.

1; R4-I at 5.1 The court then rescheduled the sentencing proceeding so that it could

consider the matter further.

       When the proceeding resumed two weeks later, the court determined that the

eight-level enhancement did apply because Alfaro-Gramajo’s offense fit the

definition of aggravated felony. The court noted that “you can weave your way

through the various sections and subsections and get back to that definition in more

ways than one.” R4-II at 5. However, the court refused to apply the 16-level

enhancement because the definition of “crime of violence” for the purpose of that

enhancement required that the charged offense include the use of violence as an

element of the offense, and the Texas statute at issue did not do so. 

the 18 U.S.C. § 3553(a) sentencing factors, the court sentenced Alfaro-

Gramajo to 37 months of imprisonment.

       On appeal, Alfaro-Gramajo argues that burglary of a vehicle does not

constitute an aggravated felony for the purpose of the § 2L1.2(b)(1)(c) because it is

neither an attempted theft offense nor a crime of violence.2

       1
        Although the record on appeal lists five separate volumes, the fourth and fifth volumes are
designated as sub-volumes I and II of a single volume 4.
       2
        In his first brief, Alfaro-Gramajo also argued extensively that burglary of a vehicle does not
constitute a burglary offense for purposes of 8 U.S.C. § 1101(a)(43)(G). The government concedes

                                                  4
                                       II. DISCUSSION

       We review de novo the issue of whether a prior conviction qualifies for

enhancement under U.S.S.G. § 2L1.2(b). United States v. Llanos-Agostadero, 

, 1196 (11th Cir. 2007) (per curiam). We may affirm the district court’s

judgment on any ground that finds support in the record. Brown v. Johnson, 

, 1351 (11th Cir. 2004).

       The Sentencing Guidelines provide for a base offense level of eight if a

defendant alien has been convicted of unlawfully reentering the United States.

U.S.S.G. § 2L1.2(a). “If the defendant previously was deported, or unlawfully

remained in the United States, after . . . a conviction for an aggravated felony,” that

base is increased by eight levels. U.S.S.G. § 2L1.2(b)(1)(C). The application

notes for this section define “aggravated felony” as having “the meaning given that

term in . . . 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2, comment. (n.3(A)).

A. Theft or Attempted Theft

       The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, includes in

the definition of aggravated felony “a theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment [is] at least one

year,” and also includes an attempt or conspiracy to commit such an offense. 8



that it does not, and the issue warrants no further discussion.

                                                  5
U.S.C. § 1101(a)(43)(G), (U). Because Congress did not define the terms “theft

offense” or “burglary offense,” courts define them in “the generic sense in which

the term[s are] now used in the criminal codes of most States.” See Taylor v.

United States, 

, 598, 

, 2158 (1990) (interpreting the

term “burglary” for the purpose of applying 18 U.S.C. § 924(e)).

      The Supreme Court has held that, in determining whether a prior state

offense qualifies as a predicate offense in a criminal enhancement statute, courts

generally must

      look only to the fact of conviction and the statutory definition of the
      prior offense. This categorical approach, however, may permit the
      sentencing court to go beyond the mere fact of conviction in a narrow
      range of cases where a jury was actually required to find all the
      elements of [the] generic [offense].”

, 110 S.Ct. at 2160 (footnote omitted); see also Gonzales v.

Duenas-Alvarez, __ U.S. __, __, 

, 818 (2007) (observing that, for

purposes of 8 U.S.C. § 1101, “[i]n determining whether a conviction . . . falls

within the scope of a listed offense (e.g., “theft offense”), the lower courts

uniformly have applied the approach . . . set forth in Taylor v. United States”). If

the state statute includes additional conduct that does not meet the elements of the

generic offense in the enhancement statute, then sentencing courts can look at the

charging documents and jury instructions to show that the defendant was actually



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convicted of the generic offense. 

, 

at 2160.

This holding now extends to convictions following guilty pleas. Shepard v. United

States, 

, 19, 

, 1259 (2005). In such cases, to determine

whether the offense of conviction is included in the generic offense triggering an

enhancement, courts may consider the charging document, plea agreement, and

plea colloquy transcript or other comparable record establishing the factual basis

for the plea. 

125 S. Ct. at 1263.

      We have confirmed that the basic elements of a generic theft offense include

a “taking of property” with “criminal intent to deprive the owner of the rights and

benefits of ownership, even if such deprivation is less than total or permanent.”

Jaggernauth v. U.S. Attorney General, 

, 1353 (11th Cir. 2005) (per

curiam) (quotations omitted); see also United States v. Vasquez-Flores, 

, 1125 (10th Cir. 2001); Hernandez-Mancilla v. INS, 

, 1009

(7th Cir. 2001). Similarly, we have recognized that the “basic elements of an

attempt are (1) an intent to engage in criminal conduct and (2) conduct constituting

a ‘substantial step’ towards the commission of the substantive offense which

strongly corroborates the defendant’s criminal intent.” United States v. Collins,

, 1533 (11th Cir. 1986).

      The Texas statute under which Alfaro-Gramajo was convicted provides:



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       § 30.04 Burglary of Vehicles

       (a) A person commits an offense if, without the effective consent of
       the owner, he breaks into or enters a vehicle or any part of a vehicle
       with intent to commit any felony or theft.
       (b) For purposes of this section, “enter” means to intrude:
              (1) any part of the body; or
              (2) Any physical object connected with the body.
       (c) An offense under this section is a felony of the third degree.

Tex. Penal Code § 30.04 (1993).3

       To be convicted of burglary of a vehicle in violation of Tex. Penal Code

§ 30.04, Alfaro-Gramajo must have had “the intent to commit any felony or theft.”

See 

statute alone does not tell us whether Alfaro-Gramajo had the

intent to commit a theft or the intent to commit some other felony. However, the

Texas charging document clarifies that Alfaro-Gramajo “[broke] into and

enter[ed]” a vehicle “with the intent to commit theft.” R.Exh., Gov. 1; see 

, 110 S. Ct. at 2160; Shepard, 544 U.S. at 

.

The issue, therefore, is whether breaking into and entering a vehicle with the intent

to commit theft constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43).

       Because Tex. Penal Code § 30.04 does not include the element of a taking,

we find that it is not a theft offense under 8 U.S.C. § 1101(a)(43)(G). See



       3
         Although Texas law of burglary of a vehicle changed after the time of Alfaro-Gramajo’s
conviction, reducing the crime from a felony to a misdemeanor offense, the parties agree that the
change does not bear on this appeal.

                                               8


. However, Alfaro-Gramajo’s conviction under Tex.

Penal Code § 30.04 required both the intent to commit a theft and the breaking into

and entering of an automobile, which constituted a substantial step toward

committing a theft. Thus, Alfaro-Gramajo’s prior offense qualifies as an attempted

theft under the categorical approach of Taylor, which compares the elements of the

offense of conviction with a generic definition of the offense listed in

§ 1101(a)(43), in this case an attempted theft offense under § 1101(a)(43)(G) and

(U).4 See 

, 110 S. Ct. at 2160; 

.

Accordingly, it constitutes an aggravated felony for the purpose of a §

2L1.2(b)(1)(C) enhancement.

B. Crime of Violence

       Even if Alfaro-Gramajo’s conviction for burglary of a vehicle did not

constitute an attempted theft for purposes of § 1101(a)(43), the INA definition of

“aggravated felony” also includes “crime[s] of violence,” incorporating the

definition from 18 U.S.C. § 16. 8 U.S.C. § 1101(a)(43)(F). In relevant part, that

section defines a “crime of violence” as any offense “that is a felony and that, by



       4
          Alfaro-Gramajo’s argument that there is no evidence that the theft attempted would have
been a felony under Texas law, as opposed to a misdemeanor, is without merit, as the offense must
viewed in light of the definition in § 1101(a)(43)(G) and (U), and Alfaro-Gramajo does not dispute
that his sentence was more than one year. See 

, 110 S. Ct. at 2160; 

.

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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(b). Alfaro-Gramajo argues that burglary of a vehicle is not a crime of

violence because the broad construction Texas courts have given the offense means

that it often involves no physical force against the property of another.

      The Supreme Court has explained that the “substantial risk” in 16(b) refers

to the intentional use of force, not to the possible effect of a person’s conduct.

Leocal v. Ashcroft, 

, 11, 

, 383 (2004) (in the context of a

DUI offense). We have further clarified that the issue of determining whether an

offense is a crime of violence is a “categorical question, and is thus not dependent

upon the specific facts of the case.” United States v. Johnson, 

,

1301-02 (11th Cir. 2005) (per curiam) (interpreting crime of violence under 18

U.S.C. 3156(a)(4)(B) which has a definition similar to that in 18 U.S.C. § 16(b)).

      On its face, the plain language of 16(b) encompasses Tex. Penal Code

§ 30.04, which proscribes breaking into, or entering, a vehicle with the intent to

commit a theft or felony. Breaking into a vehicle, by its nature, involves a

substantial risk that physical force may be used against the property of another.

See 18 U.S.C. § 16(b). Alfaro-Gramajo’s argument that the Texas courts have

construed the statute too broadly for it to be considered a crime of violence is



                                           10
unpersuasive. The cases cited by Alfaro-Gramajo show that Texas courts have

interpreted the statute within the plain meaning of its terms. See, e.g., Thomas v.

State, 919 S.W.2d 810,814 (Tex. Ct. App. 1996) (holding a car was broken into or

entered when defendant reached in through the open window of a car). However,

to qualify under § 16(b), the offense need not always require physical force against

the property of another, but rather must lie within a category of offenses the

commission of which presents a substantial risk that physical force will be used.

Accordingly, we join the Fifth Circuit in holding that Tex. Penal Code § 30.04

describes a crime of violence for the purposes of 18 U.S.C. § 16(b). See Lopez-

Elias v. Reno, 

, 792 (5th Cir. 2000). This, in turn, makes Alfaro-

Gramajo’s burglary of a vehicle an aggravated felony for the purpose of §

2L1.2(b)(1)(C).

                                III. CONCLUSION

      Alfaro-Gramajo appeals his 37-month sentence, arguing that the district

court erred in enhancing his sentence based on a prior Texas conviction for

burglary of a vehicle. Because we conclude that this prior offense qualifies as an

aggravated felony for purposes of U.S.S.G § 2L1.2(b), both as an attempted theft

offense and, altnernatively, as a crime of violence, we AFFIRM.




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