                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0592n.06

                                          No. 14-6509


                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
UNITED STATES OF AMERICA,                               )                    Aug 19, 2015
                                                        )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
GERMAN CASTRO-MARTINEZ,                                 )      COURT FOR THE MIDDLE
                                                        )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                             )
                                                        )
                                                        )

BEFORE:       SUHRHEINRICH and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.


       SUHRHEINRICH, Circuit Judge.            Defendant-Appellant German Castro-Martinez

pleaded guilty to illegally reentering the United States after removal subsequent to a conviction

for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court held

that his prior conviction for aggravated burglary under Tennessee Code Annotated § 39-14-403

was a “crime of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), and applied a 16-level

enhancement. Defendant challenges this ruling and the resulting sentence imposed. We affirm.


                                               I.


       The predicate offense is based on the following event. On October 12, 2007, police

received a call from neighbors that several male Hispanics were breaking into a house next to

7528 Sawyer Brown Road. According to the probable cause affidavit, the responding officer,

Officer Taylor C Schmitt, was informed upon his arrival that the men were in the storage unit
No. 14-6509, United States v. Castro-Martinez


behind the house. Schmitt reported that the door to the shed opened and one Hispanic male fled.

By this time, Officer Sears arrived and chased the suspect. Schmitt went back to the shed and

ordered the other men to exit the shed. Schmitt stated that “[t]he other two suspects did exit the

vehicle [sic] and were taken into custody.” The probable cause affidavit also stated, “The

suspects also broke into the house.”


       On February 29, 2008, Defendant was charged in a two-count indictment in Davidson

County, Tennessee.      Count One charged Defendant with aggravated burglary, alleging

specifically that Defendant “enter[ed] the habitation of George Tanifum and did commit or

attempt to commit theft in violation of Tennessee Code Annotated § 39-14-403.” Count Two

charged Defendant with theft of property and alleged that he intended to deprive Tanifum of

“computer equipment” and a “wallet.” Defendant pleaded guilty to Count One on May 8, 2008,

and Count Two was dismissed.


       Subsequently, Defendant was deported to Mexico because he lacked legal immigration

status, having entered the United States illegally at age 12. After that deportation and one other,

Defendant entered the United States in 2009, at about age 20. He was arrested for driving

without a license in December 2013, and, on February 19, 2014, he was charged with the offense

of illegal reentry by an aggravated felon. On July 21, 2014, he pleaded guilty to the indictment.


        Defendant’s presentence report (PSR) stated that Defendant’s prior state conviction for

aggravated burglary was a “crime of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) and, as

a result, applied a 16-level enhancement to Defendant’s base offense level of 8. With a criminal

history category of III, Defendant’s Guidelines range was 46 to 57 months. In his response to

the sentencing report, Defendant conceded that his aggravated burglary conviction was an


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No. 14-6509, United States v. Castro-Martinez


“aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43).         However, he argued that his

conviction was not a “crime of violence”—i.e. “burglary of a dwelling,” as defined in U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) and cmt. n.1(B)(iii). Without the 16-level enhancement, his sentencing

guidelines range would have been 18 to 24 months.


       Sentencing was postponed, however, pending this court’s decision in United States v.

Lara, 590 F. App’x 574 (6th Cir. 2014), which also dealt with Tenn. Code Ann. § 39-14-403.

Lara held that the Tennessee statute was not categorically a “burglary of a dwelling” as defined

in U.S.S.G. § 2L1.2(b)(1)(A)(ii) and cmt. n.1(B)(iii), because it defines “habitation” broadly, to

include a storage shed behind a house. Lara, 590 F. App’x at 578-85.


       Based upon Lara’s holding, the United States asked the district court to apply the

modified categorical approach, and argued that the “Shepard documents” describing Defendant’s

state conviction established that he had been convicted of a “burglary of a dwelling.” Defendant

countered that because “a shed was involved, maybe a house too, but it’s not clear,” the court

should impose the 8-level enhancement instead of a 16-level enhancement. The district court

considered the Shepard documents.        Focusing on a statement by the state court judge to

Defendant that he was charged with “aggravated burglary, breaking into a home with intent to

commit a theft,” (emphasis added), the district court concluded that the plea colloquy included

an express reference that Defendant was pleading guilty to the charge of aggravated burglary into

a house. Thus, Defendant’s state court conviction qualified as a crime of violence and the 16-

level enhancement applied. After a 3-level adjustment for acceptance of responsibility, the court

found that Defendant’s total offense level was 21, and with a criminal history category of III, his

Guidelines range was 46 to 57 months.



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No. 14-6509, United States v. Castro-Martinez


       Defendant requested a sentence of 18 months, which would have been within his

Guidelines range if only an 8-level enhancement had been imposed. The district court stated that

it had considered all of the 18 U.S.C. § 3553(a) factors, that it believed that the enhancement

applied, but that it would grant a downward variance of twelve months due to Defendant’s age of

18 at the time of the prior conviction. The court also stated that the prior aggravated burglary

conviction was “a significant fact in sentencing, whether as an enhancement or just as a

sentencing factor.” The court then stated that it would impose a sentence that was no greater

than necessary, given his two prior deportations. The court imposed a sentence of 34 months.

The United States also asked whether the court would have imposed the same sentence based on

the § 3553(a) factors if it had not decided to apply the 16-level enhancement, given the nature

and circumstances of Defendant’s prior conviction. The court concluded by asking if either party

had any procedural or substantive objections to the sentence imposed. Neither party had any.


       On appeal, Defendant argues that (1) the district court misapplied the modified

categorical approach; and (2) § 39-14-403 is not a divisible statute. The United States responds

that (1) Tennessee’s aggravated burglary statute is divisible and that the Shepard documents in

this case, namely the state plea colloquy, demonstrate that Defendant was convicted of burglary

of a dwelling; and (2) even if the 16-level enhancement was improperly applied, Defendant’s 34-

month sentence should be affirmed because the district court confirmed that it would have

imposed the same sentence in any event, based upon the factors set out in 18 U.S.C. § 3553(a).


                                                II.


       The applicable Sentencing Guideline, U.S.S.G. § 2L1.2, “Unlawfully Entering or

Remaining in the United States,” has a base offense level of 8. U.S.S.G. § 2L1.2(a). However,


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No. 14-6509, United States v. Castro-Martinez


if the defendant has been convicted of a “crime of violence” his offense level is increased by 16.

U.S.S.G. § 2L1.2(b)(A)(ii). “[B]urglary of a dwelling” is considered a “crime of violence.”

U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). A generic burglary of a dwelling is a burglary of a structure

for the purpose of human habitation. United States v. McFalls, 592 F.3d 707, 713 (6th Cir.

2010). This court reviews de novo a district court’s determination that a prior conviction

constitutes a crime of violence for purposes of U.S.S.G. § 2L1.2. United States v. Soto-Sanchez,

623 F.3d 317, 319 (6th Cir. 2010).


       Defendant was convicted of aggravated burglary under Tenn. Code Ann. § 39-14-403(a),

which defines “[a]ggravated burglary” as “burglary of a habitation as defined in §§ 39-14-401

and 39-14-402.” “Habitation” as defined in section 39-14-401(1)


       (A) Means any structure, including buildings, module units, mobile homes,
       trailers, and tents, which is designed or adapted for the overnight accommodation
       of persons;
       (B) Includes a self-propelled vehicle that is designed or adapted for the overnight
       accommodation of persons and is actually occupied at the time of initial entry by
       the defendant; and
       (C) Includes each separately secured or occupied portion of the structure or
       vehicle and each structure appurtenant to or connected with the structure or
       vehicle[.]
Section 39-14-402(a), in turn, provides in relevant part that a person commits burglary if,

without consent of the property owner, he (1) “[e]nters a building other than a habitation (or any

portion thereof) not open to the public, with intent to commit a felony, theft or assault”;

(2) “[r]emains concealed, with the intent to commit a felony, theft or assault in a building”;

(3) “[e]nters a building and commits or attempts to commit a felony, theft or assault, or”;

(4) “[e]nters any freight or passenger car, automobile, . . . with intent to commit a felony, theft or

assault.”


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No. 14-6509, United States v. Castro-Martinez


       In Lara, this court considered whether § 39-14-403 categorically qualifies as a generic

“burglary of a dwelling” within the meaning of § 2L1.2(b)(1)(A)(ii) and cmt. n. 1(B)(iii). Using

the enumerated-offense approach, the Lara court determined that the statute encompasses more

conduct than the generic definition of the enumerated-offense crime, because § 39-14-401(1),

which is incorporated by reference, “expands the definition of ‘habitation’ to include unattached,

uninhabited structures,” such as a shed. Lara, 590 F. App’x at 583.


       We further concluded that aggravated burglary under Tenn. Code Ann. § 39-14-403 is a

divisible statute, because


       The state could charge a person with burglary of five types of structure: a
       “structure ... designed or adapted for the overnight accommodation of persons,”
       Tenn. Code Ann. §§ 39–14–401(1)(A), 403; a “self-propelled vehicle that is
       designed or adapted for the overnight accommodation of persons and is actually
       occupied at the time of initial entry by the defendant,” id. §§ 39–14–401(1)(B),
       403; a “separately secured or occupied portion of the structure or vehicle,” id. §§
       39–14–401(1)(C), 403; a “structure appurtenant to ... the structure or vehicle,” id.;
       or a “structure ... connected with the structure or vehicle.” Id. Thus, it is possible
       to determine which structure the defendant burglarized, and § 39–14–403 is a
       divisible statute.
Id. at 585. We also noted that if a statute is divisible, the modified categorical approach permits

“the court to examine certain documents to determine which statutory phrase was the basis for

the conviction.” Id. (internal quotation marks and citation omitted). However, because the

government had failed to develop its argument in favor of a remand to apply the modified

categorical approach, the Lara court remanded for the limited purpose of resentencing without a

crime of violence enhancement under § 2L1.2(b)(1)(A)(ii). Id. at 586-87.


       Defendant makes two arguments on appeal. First, he argues that, under the modified

categorical approach, the plea colloquy failed to show that his conviction necessarily rested on




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No. 14-6509, United States v. Castro-Martinez


the entry of a house rather than a shed. Second, he contends that the district court erred by

treating Tennessee’s aggravated burglary statute as divisible in the first place.


       We address the second issue first. If Defendant is correct, we would be obligated to

reverse, because the modified categorical approach cannot be applied to an indivisible statute,

Descamps v. United States, 133 S. Ct. 2276, 2282 (2013). However, since Descamps, this court

has held that both § 39-14-402 (burglary) and § 39-14-403 (aggravated burglary) are divisible

statutes. See United States v. Moore, 578 F. App’x 550, 553 (6th Cir. 2014) (§ 39-14-402), and

Lara, 590 F. App’x at 585 (§ 39-14-403). This court recently confirmed in a published decision

Lara’s holding that a conviction under § 39-14-403 is divisible and subject to a modified

categorical analysis under Shepard v. United States, 544 U.S. 13, 16, 26 (2005). See United

States v. Ozier, -- F.3d --, No. 14-6439, 2015 WL 4636669, at *2-6 (6th Cir. Aug. 5, 2013).


       As Lara holds, the statute allows the state to charge a person with burglary of five types

of structures. Lara, 590 F. App’x at 585. In other words, the statutory language defining

“habitation” clearly “sets out one or more elements of the offense in the alternative.” Descamps,

133 S. Ct. at 2281. Cf. Nijhawan v. Holder, 557 U.S. 29, 35 (2009) (treating a Massachusetts

statute prohibiting “Breaking and Entering at Night” in any of four alternative places—a

“building, ship, vessel, or vehicle”—as divisible, and explaining that a court must determine

which crime formed the basis of the conviction); United States v. Walker, 599 F. App’x 582, 583

(6th Cir. 2015) (rejecting the defendant’s argument that Kentucky’s third-degree burglary statute

was not divisible because its definition of “building” encompasses “any structure, vehicle,

watercraft or aircraft” where people live or assemble and thus “sets out an ‘element of the

offense in the alternative’” (quoting Descamps, 133 S. Ct. at 2281)). Thus, under Descamps,

Lara, and Ozier, the district court did not err in applying the modified categorical approach to

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No. 14-6509, United States v. Castro-Martinez


determine if the crime of conviction here meets the definition of the generic offense of burglary

of a dwelling. See also McFalls, 592 F.3d at 712-16 (ordering that remand was appropriate to

allow the district court to consider whether any Shepard documents established that the

defendant’s prior conviction under South Carolina’s burglary statute, which also broadly defined

structure to include sheds within two hundred yards from a residence, actually met the generic

definition of dwelling under U.S.S.G. § 4B1.1).


       We now turn to Defendant’s first argument—that the district court misapplied the

modified categorical approach. In applying the “crime of violence” enhancement, we may

“consult a limited class of documents” in order to determined which alternative element “formed

the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2281. We may “compare

the elements of the crime of conviction (including the alternative element used in the case) with

the elements of the generic crime.” Id. The documents include the “charging document, written

plea agreement, transcript of plea colloquy,” jury instructions, and “any explicit factual finding

by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 26.


       The United States contends that the Shepard documents—the state indictment, judgment,

and Defendant’s plea colloquy—demonstrate by a preponderance of the evidence that the crime

of conviction was, in fact, “burglary of a structure used for the purpose of human habitation,”

and therefore the conviction was one of “burglary of a dwelling,” warranting the 16-level

enhancement.


       The state court indictment does not specify whether Defendant entered the house or the

shed, but simply states that Defendant did “enter the habitation of George Tanifum and did

commit or attempt to commit theft in violation of Tennessee Code Annotated § 39-14-403.”


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No. 14-6509, United States v. Castro-Martinez


However, at the state plea colloquy, the state court judge informed Defendant that “You are here

charged with aggravated burglary, breaking into a home with intent to commit a theft. That

charge could carry a sentence of from 3 to 15 years in jail. Do you understand that charge

against you?” (Emphasis added.) Defendant replied, “Yes.” The state court did not state that

Defendant was charged with breaking into a “structure . . . designed or adapted for the overnight

accommodation of persons,” the precise language of § 39-14-401(1)(A). It is true that some

definitions of “home” would suggest that the district court’s use of “home” essentially means the

same thing.1 However, other definitions of “home” could encompass a “shed.”2


         However, the statement of facts at the state plea hearing, in conjunction with the state

court’s statement that Defendant was charged with breaking into a home, confirms that

Defendant was convicted of burglarizing a dwelling. The state judge asked defense counsel if “it

[would be] satisfactory [if] the State give the Court a factual basis for the plea.” Defense counsel

assented. The state prosecutor explained that a trial would have shown that (1) neighbors

observed three men breaking into a neighbor’s house; (2) when Officer Schmitts went to the

back of the house, he saw one of the suspects emerge from the house and flee; (3) Defendant fled

down a treeline towards Charlotte Pike; and (4) Officer Schmitts ordered the other two suspects
                              3
to exit the storage shed.         The state trial judge then asked Defendant directly if the prosecutor’s


         1
            “Home” is defined as “one’s place of residence: DOMICILE”; “HOUSE.” Merriam-Webster Dictionary,
www-merriam-webster.com/dictionary/home. “Residence in turn is defined as “a building used as a home:
DWELLING.” Merriam-Webster Dictionary, www.merriam-webster.com/dictionary/residence.
          2
             Merriam-Webseter Unabridged Dictionary defines “home” as “the house and grounds with their
appurtenances habitually occupied by a family.” Merriam-Webster Dictionary, http://unabridged.merriam-
webster.com/unabridged/home (emphasis added).
          3
            The prosecutor’s statement of facts varies from the probable cause affidavit in one significant respect: the
affidavit states that Defendant fled from the shed. Nonetheless, Defendant did not assent to this version of the facts.
Rather, he assented to the prosecutor’s description that he fled from the house, after he agreed with the state trial
judge that he was charged with breaking into a home. We have held that probable cause affidavits, standing alone,
are not documents we can examine under Shepard. United States v. Rede-Mendez, 680 F.3d 552, 559 (6th Cir.
2012) (“[A] statement of probable cause is a gateway step in the criminal process that does not establish what acts
were necessarily admitted by a later guilty plea.”) (internal quotation marks omitted). Compare United States v.

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No. 14-6509, United States v. Castro-Martinez


statement of the facts was “true and correct. Defendant replied, “Yes.” Neither Defendant nor

his attorney stated that Defendant had been in the shed, let alone only the shed. Defendant

contends that the court erred in considering these facts, yet he asks us to consider those same

facts as supporting his argument that he could have pleaded guilty to burglarizing the shed. He

further argues that the plea colloquy’s factual basis is inconclusive because it does not

necessarily exclude that his plea was accepted “upon his admissions regarding the shed.”

However, the statement of facts did not indicate that Defendant had “entered” the shed. Rather,

Defendant admitted to the fact that he “entered” the victim’s home before the officers arrived on

the scene, fled from the home, and that the two other suspects were found in the shed. Defendant

made no admissions regarding the shed beyond that a wallet of one of the victims and the other

two suspects were found in the shed after he fled from inside the house. Thus, the plea colloquy

demonstrates that Defendant had been charged with illegally entering a “habitation,” here a

structure “designed or adapted for the overnight accommodation of persons” and had in fact

entered such a structure.


        Defendant argues that Descamps compels the rule that a plea colloquy used to analyze a

conviction under a divisible statute must negate all possible statutory alternatives to a conviction

for a generic offense. Descamps does not stand for this proposition. See Descamps; 133 S. Ct. at

2281 (“This case presents the question whether sentencing courts may also consult those

additional documents when a defendant was convicted under an ‘indivisible’ statute.”); United

States v. Amos, 604 F. App’x 418, 423 (6th Cir. 2015) (stating that “the issue in Descamps was


Amos, 496 F. App’x 517, 523-26 (6th Cir. 2012) (holding that probable cause affidavit qualified as a Shepard
document where the defendant stipulated to its facts during the state plea colloquy and remanding for resentencing),
cert. denied, 133 S. Ct. 14878 (2013). See also United States v. Amos, 604 F. App’x 418, 420, 423-24 (6th Cir.
2015) (upon remand, holding that undisputed facts in the probable cause affidavit established that the defendant’s
prior state conviction for aggravated assault qualified as a “violent felony” under the Armed Career Criminal Act),
petition for cert. filed, (June 9, 2015) (No. 14-10193).

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No. 14-6509, United States v. Castro-Martinez


whether the lower courts applied the proper test when determining that a burglary conviction

under an indivisible statute . . . was a ‘violent felony’ under the ACCA”). United States v.

Marcia-Acosta, 780 F.3d 1244 (9th Cir. 2015), is also inapposite. In that case, the parties agreed

the defendant was convicted of violating A.R.S. § 13–1203(A)(1), which prohibits “intentionally,

knowingly or recklessly causing any physical injury.” The generic crime of aggravated assault

requires a mens rea “of at least recklessness under circumstances manifesting extreme

indifference to the value of human life.” Id. at 1249 (internal quotation marks omitted). Thus,

the statute of conviction, A.R.S. § 13-1203(A)(1), encompassed conduct beyond the generic

crime because it can be committed with a mens rea of ordinary recklessness. Id. Because the

defendant waived any argument that A.R.S. § 13–1203(A)(1) is not divisible, the Ninth Circuit

analyzed subsection (A)(1) under the modified categorical approach. Id. at 1250–51.4 The court

noted that the charging document and plea agreement “merely restat[ed] the disjunctively

phrased list of mens rea elements in the cross-referenced statute” and “shed no light” on whether

the defendant actually pleaded guilty to the generic crime. Id. at 1252. Thus, the only support

for the district court’s determination that the defendant’s prior conviction was a crime of

violence was the defense attorney’s statement that the defendant acted intentionally, which was

extraneous to the conviction. Id. at 1252-53. The Ninth Circuit then held that the defense

attorney’s statement did not necessarily exclude the possibility that the defendant had pleaded

guilty to conduct that was less than intentional. As the Ninth Circuit explained, “the mens rea


       4
           Under Arizona law, assault is committed by:

       1. Intentionally, knowingly or recklessly causing any physical injury to another person; or

       2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

       3. Knowingly touching another person with the intent to injure, insult or provoke such person.

       Ariz.Rev.Stat. § 13–1203(A).

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No. 14-6509, United States v. Castro-Martinez


elements in this case are nested. That is, they are inherently not mutually exclusive, as an assault

can be reckless, knowing, and intentional. A factual-basis admission as to one mental state thus

does not negate the possibility of conviction under another.” Id. at 1255 n.10. Under the Ninth

Circuit’s rule that a defendant must negate the possibility that he was convicted under any

elements of a divisible statute that are not generic crimes of violence, the Shepard documents

here do negate the possibility that Castro-Martinez pleaded guilty to anything other than the

generic crime of burglary of a dwelling. As discussed previously, the factual basis of his plea

suggested that he only entered the house; it nowhere mentions that he entered the shed. Unlike in

Marcia-Acosta, where “intentional” could encompass ordinary recklessness, there is no way in

which “house” encompasses “shed.” In sum, Defendant necessarily admitted that he violated

§ 39-14-401(1)(A) and not -401(1)(C).


       The United States has met its burden here of proving by a preponderance of the evidence

that Defendant was convicted of a “burglary of a dwelling” and thus the 16-level enhancement

was properly applied. Given this conclusion, we need not address the United States’ alternative

arguments.


                                                III.


       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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