United States v. Vargas-Duran,
356 F.3d 598 (5th Cir. Jan. 8, 2004) (en banc) (Texas conviction
of intoxication assault - "by accident or mistake, while
operating an aircraft, watercraft or motor vehicle in a public
place while intoxicated, by reason of that intoxication causes
serious bodily injury to another." - in violation of
Tex. Penal Code § 49.07, did not constitute a crime of violence,
and so was not an aggravated felony under INA § 101(a)(43)(F),
8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence
enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii),
Application Note 1(B)(ii)(I) (2001), because the crime of
violence definition requires that the defendant must intentionally
avail him- or herself of the use, attempted use, or threatened
use of physical force against the person of another, and that
this must be an element of the predicate offense).