     Case: 15-41056      Document: 00513584365         Page: 1    Date Filed: 07/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-41056                                 FILED
                                                                                July 8, 2016
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

              Plaintiff - Appellee

v.

BENITO SANCHEZ-RODRIGUEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:14-CR-880


Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Benito Sanchez-Rodriguez was convicted in 2002
of dealing in stolen property in a Florida state court. On April 30, 2015,
Sanchez-Rodriguez pleaded guilty to one count of illegal reentry in violation of
8 U.S.C. § 1326(a) and (b)(1). In sentencing him, the district court concluded
that Sanchez-Rodriguez’s 2002 Florida conviction was an aggravated felony
within the meaning of U.S.S.G. § 2L1.2(b)(1)(C).                 However, because the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-41056
relevant Florida statute applies to conduct outside the definition of the generic
crime under the sentencing Guidelines, we cannot agree that Sanchez-
Rodriguez’s   conviction   was    an   aggravated     felony   under    U.S.S.G.
§ 2L1.2(b)(1)(C). Accordingly, we VACATE Sanchez-Rodriguez’s sentence and
REMAND for re-sentencing.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In June 2002, the State of Florida filed a three-count criminal
information against Defendant–Appellant Benito Sanchez-Rodriguez.             As
relevant here, the third count charged Sanchez-Rodriguez with “Dealing in
Stolen Property,” in violation of Florida Statute § 812.019. Specifically, the
third count stated that Sanchez-Rodriguez “unlawfully traffic[ked] or
endeavor[ed] to traffic in stolen property . . . and in so doing [Sanchez-
Rodriguez] knew or should have known that said property was stolen.”
Sanchez-Rodriguez subsequently pleaded guilty to this count in Florida state
court, and he was sentenced to three years’ imprisonment, which was
suspended for three years’ probation.      Following this conviction, Sanchez-
Rodriguez, who is a citizen of Mexico and who had no legal status in the United
States, was deported to Mexico in December 2002.
      In May 2014, Sanchez-Rodriguez was arrested for driving while
intoxicated in Texas.      Immigration and Customs Enforcement agents
encountered Sanchez-Rodriguez while he was detained at a local jail following
his arrest, and he admitted to them that he was a citizen of Mexico without
legal status in the United States.      Sanchez-Rodriguez was subsequently
indicted on one count of illegal reentry in violation of 8 U.S.C. § 1326(a) and
(b)(1). On April 30, 2015, he pleaded guilty to the indictment without a plea
agreement, and the district court accepted his plea in August 2015.
      A United States Probation Officer prepared a presentence investigation
report (PSR) using the 2014 edition of the United States Sentencing Guidelines
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(U.S.S.G.). Under U.S.S.G. § 2L1.2(a), Sanchez-Rodriguez was assigned a base
offense level of eight. The base offense level was enhanced by eight levels
because, according to the PSR, Sanchez-Rodriguez’s 2002 Florida conviction
for dealing in stolen property qualified as an “aggravated felony” under
U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez’s offense level was reduced by
three levels based on his acceptance of responsibility and his guilty plea,
yielding a total offense level of 13. See U.S.S.G. § 3E1.1. Based on his criminal
history, Sanchez-Rodriguez was assigned a criminal history category of IV.
With an offense level of 13 and a criminal history category of IV, the Guidelines
range for Sanchez-Rodriguez was 24 to 30 months’ imprisonment.
      Sanchez-Rodriguez filed written objections to the PSR, arguing that his
stolen-property conviction was not an aggravated felony as defined by U.S.S.G.
§ 2L1.2(b)(1)(C) or 8 U.S.C. § 1101(a)(43) and that, therefore, he was not
eligible for the eight-level enhancement. Sanchez-Rodriguez also objected to
the enhancement at sentencing, arguing that “the Florida statute is overly
broad.”     The district court overruled Sanchez-Rodriguez’s objections and
adopted the PSR in full.         The court then sentenced him to 27 months’
imprisonment—the middle of the Guidelines range. Sanchez-Rodriguez timely
appealed,    challenging   the    aggravated-felony   enhancement      based    on
overbreadth.
                        II. STANDARD OF REVIEW
      We review a district court’s sentencing decision “for reasonableness.”
United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009). In doing so, we
review the district court’s interpretation of the Guidelines de novo. United
States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).            If the
defendant fails to object at sentencing, our review is only for plain error.
Anderson, 559 F.3d at 354. Sanchez-Rodriguez argues that the appropriate
standard of review is de novo, while the Government contends that plain error
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review applies.   However, the court, not the parties, must determine the
appropriate standard of review. United States v. Torres-Perez, 777 F.3d 764,
766 (5th Cir. 2015).
      To preserve an error, an objection must be sufficiently specific to alert
the district court to the nature of the alleged error and to provide an
opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir.
2000). Sanchez-Rodriguez filed a written objection and objected at sentencing,
raising essentially the same—if not as refined—argument that he raises on
appeal. Thus, the district court was adequately notified of the grounds upon
which Sanchez-Rodriguez’s objection was made. See, e.g., United States v.
Garcia-Perez, 779 F.3d 278, 282 (5th Cir. 2015) (determining that, although
the defendant refined his argument on appeal, his objection to the
classification of his prior conviction as a crime of violence was sufficient to
preserve the issue on appeal).    Because the district court was adequately
notified of the grounds of Sanchez-Rodriguez’s objection, our review is de novo.
See id.; Ocana, 204 F.3d at 588–89.
     III. AGGRAVATED FELONY UNDER U.S.S.G. § 2L1.2(b)(1)(C)
      Under U.S.S.G. § 2L1.2(b)(1)(C), a defendant’s base offense level will be
increased by eight levels “[i]f the defendant previously was deported, or
unlawfully remained in the United States, after . . . a conviction for an
aggravated felony.” Id. The commentary to the Guidelines provides that “[f]or
the purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given
that term in section 101(a)(43) of the Immigration and Nationality Act (8
U.S.C. § 1101(a)(43)), without regard to the date of conviction for the
aggravated felony.” U.S.S.G. § 2L1.2 cmt. n.3(A); see also United States v.
McKinney, 520 F.3d 425, 429 (5th Cir. 2008) (“The commentary's
interpretation of the guidelines is generally authoritative.”). That statute
defines “aggravated felony” as “a theft offense (including receipt of stolen
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property) or burglary offense for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(G). In this case, the district court concluded
that Sanchez-Rodriguez’s 2002 Florida conviction for dealing in stolen property
constituted an aggravated felony within this definition. We disagree and hold
that Sanchez-Rodriguez’s Florida conviction is not an aggravated felony within
this definition and that, therefore, the district court erred in applying a
sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C).
       “To determine whether a prior conviction qualifies as an offense under
the Sentencing Guidelines, we begin with the categorical approach described
in Taylor v. United States, 495 U.S. 575, 602 (1990).”                   United States v.
Rodriguez-Negrete, 772 F.3d 221, 224–25 (5th Cir. 2014).                   This court has
previously explained:
       [W]hen applying the categorical approach, courts “compare the
       elements of the statute forming the basis of the defendant’s
       conviction with the elements of the ‘generic’ crime—i.e., the offense
       as commonly understood” that triggers the sentencing
       enhancement. “If the [offense of conviction] has the same elements
       as the ‘generic’ . . . crime [in the sentencing enhancement], then
       the prior conviction can serve as [the] predicate; so too if the
       statute defines the crime more narrowly, because anyone convicted
       under that law is ‘necessarily . . . guilty of all the [generic crime’s]
       elements.’”

United States v. Schofield, 802 F.3d 722, 727–28 (5th Cir. 2015) (alterations in
original) (citation omitted) (quoting Descamps v. United States, 133 S. Ct. 2276,
2281, 2283 (2013)). Where, as here, a defendant was convicted of violating a
divisible statute, 1 we employ the modified categorical approach, which “helps
implement the categorical approach when a defendant was convicted of



       1 A divisible statute “lists multiple, alternative elements, and so effectively creates
‘several different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder,
557 U.S. 29, 41 (2009)).
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                                 No. 15-41056
violating a divisible statute.” Descamps, 133 S. Ct. at 2285. “[T]he modified
categorical approach permits sentencing courts to consult a limited class of
documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior conviction.” Id. at 2281.
Having made this determination, “[t]he court can then do what the categorical
approach demands: compare the elements of the crime of conviction (including
the alternative element used in the case) with the elements of the generic
crime.” Id.
      Here, the generic crime is “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(G). “The provision does not define ‘theft
offense.’” United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012)
(per curiam). Accordingly, we have previously applied “‘the generic,
contemporary meaning’ of ‘theft offense’ under § 1101(a)(43)(G),” which is “a
taking of property or an exercise of control over property without consent with
the criminal intent to deprive the owner of rights and benefits of ownership,
even if such deprivation is less than total or permanent.” Id. (quoting Burke v.
Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (per curiam)). As relevant to the
instant case, “this generic definition requires ‘an intent to deprive the owner
of the benefit proceeding from possession of the stolen goods.’” Id. at 775
(quoting Burke, 509 F.3d at 697)). The statute forming the basis of Sanchez-
Rodriguez’s crime of conviction is Florida Statute § 812.019, which provides
that “[a]ny person who traffics in, or endeavors to traffic in, property that he
or she knows or should know was stolen shall be guilty of a felony of the second
degree.” Florida law further provides that:
      “Traffic” means:
            (a) To sell, transfer, distribute, dispense, or otherwise
            dispose of property.

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                                     No. 15-41056
             (b) To buy, receive, possess, obtain control of, or use property
             with the intent to sell, transfer, distribute, dispense, or
             otherwise dispose of such property.
Fla. Stat. § 812.012(8).
      Sanchez-Rodriguez argues that the Florida statute is overly broad for
the purposes of the enhancement he received because it does not require proof
of the specific “intent to deprive the owner of rights and benefits of ownership,”
which is an element of the generic offense of theft.              Therefore, Sanchez-
Rodriguez argues, his conviction cannot serve as the predicate for a sentencing
enhancement under U.S.S.G. § 2L1.2(b)(1)(C). We agree that the conviction
cannot serve as the predicate for such an enhancement.
      Because the relevant Florida statute “comprises multiple, alternative
versions of the crime,” Descamps, 133 S. Ct. at 2284, we first turn to the
“charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented,”
Shepard v. United States, 544 U.S. 13, 16 (2005), to determine which version
of the crime formed the basis of Sanchez-Rodriguez’s conviction. In the 2002
Florida case, Sanchez-Rodriguez pleaded guilty to a charge that he “did
unlawfully traffic or endeavor to traffic in stolen property, to-wit: a television
and/or stereo equipment and/or a camera the property of [the victim] . . . and
in so doing . . . knew or should have known that said property was stolen.” 2
Thus, Sanchez-Rodriguez may have been convicted because he knew the
relevant property was stolen or because he should have known that property
was stolen. “Where [the Shepard-compliant] documents do not identify the
offense of conviction, we must consider whether the ‘least culpable’ means of



      2 This charge comes directly from the charging document in the 2002 Florida case. No
other Shepard-compliant documents further elucidate which version of the dealing in stolen
property statute formed the basis of Sanchez-Rodriguez’s conviction.
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violating the statute of conviction qualifies as an offense under the Sentencing
Guidelines.” Rodriguez-Negrete, 772 F.3d at 225. This is so because “[a]
sentence enhancement is properly applied only if the ‘least culpable’ means of
violating the state statute makes the defendant eligible for the enhancement.”
Id. Accordingly, we evaluate whether Sanchez-Rodriguez was eligible for the
enhancement assuming that he was convicted under the “should have known”
version of the Florida statute.
       Based on the “should have known” version of the statute, we cannot say
that the stolen property offense under Florida law requires “an intent to
deprive the owner of the benefit proceeding from possession of the stolen
goods.” Burke, 509 F.3d at 697. Although no federal court of appeals has
reached the specific question of intent at issue today, 3 Florida courts have
consistently held that, while “[b]urglary, grand theft, and petit theft are
specific intent crimes . . . [d]ealing or trafficking in stolen property is not a
specific intent crime.” Reese v. State, 869 So. 2d 1225, 1227 (Fla. Dist. Ct. App.
2004); accord Aversano v. State, 966 So. 2d 493, 495 (Fla. Dist. Ct. App. 2007).
In Glenn v. State, 753 So. 2d 669 (Fla. Dist. Ct. App. 2000), a defendant was
charged with burglary, grand theft, and dealing in stolen property. Id. at 670.
A Florida appellate court explained that, because dealing in stolen property



       3 In the district court, the Government pointed to an unpublished Eleventh Circuit
decision, United States v. Dawkins, 341 F. App’x 520 (11th Cir. 2009) (per curiam), in arguing
that dealing in stolen property under Florida law is an aggravated felony under U.S.S.G.
§ 2L1.2(b)(1)(C). In Dawkins, the defendant objected to the aggravated-felony enhancement
based on his conviction for conspiracy to transport stolen property. Id. at 522. The Eleventh
Circuit affirmed the enhancement based on the second prong of plain error review but noted
that “it appear[ed] that Dawkins’s conviction for conspiracy to transport stolen property
would qualify as an aggravated felony theft offense.” Id. at 522 n.3. On appeal, the
Government notes that, although Dawkins originated in the Southern District of Florida,
neither the opinion nor the Government’s brief in that case confirms whether the conviction
arose under Florida law. For this reason, as well as the court’s specific holding, the
Government abandoned its reliance on Dawkins on appeal. We similarly find Dawkins
unpersuasive on the issue before us.
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was not a specific intent crime like burglary and grand theft, the defendant
could not use voluntary intoxication as a defense. Id. at 670–71. The court
further explained that “[c]learly, the plain language of the statute requires
only general intent concerning the statutory element that the property
transferred be stolen, because it is sufficient if the [defendant] should have
known this fact.” 4 Id. at 671.
       The Florida courts’ analyses are supported by the plain language of the
Florida “dealing in stolen property” and “theft” statutes. Consistent with the
generic crime of theft, Florida’s theft statute requires that a defendant have
“the intent to . . . deprive the other person of a right to the property or a benefit
from the property.” Fla. Stat. § 812.014. This intent element is entirely absent
from Florida’s “dealing in stolen property” statute. See Fla. Stat. § 812.019.
Based on this absence and Florida courts’ consistent holdings that dealing in
stolen property requires no specific intent, we conclude that the crime of
dealing in stolen property is defined more broadly under Florida law than the
generic crime of “theft” under U.S.S.G. § 2L1.2(b)(1)(C). Cf. Burke, 509 F.3d at
696–97 (determining that a New York conviction for criminal possession of
stolen property constituted an aggravated felony because the statute required
the necessary criminal “intent to deprive the owner of the benefit proceeding
from possession of the stolen goods”).




       4 The Government argues that Glenn is inapposite because its analysis was specific to
“the element of selling or transferring property.” Glenn, 753 So. 2d at 671. However, the
Glenn court was simply analyzing the relevant part of § 812.019 based on the facts of the case
before it.    That statute defines “trafficking” stolen property as either selling or
buying/receiving stolen goods. Fla. Stat. § 812.012(8). Because only the selling aspect of
trafficking was relevant to the case before it, the Glenn court focused its attention there. This
does not render Glenn inapposite to the issue before us. Considering, as we must, the “‘least
culpable’ means of violating the statute of conviction,” Rodriguez-Negrete, 772 F.3d at 225,
Glenn clearly establishes that a defendant need have no specific intent in order to be found
guilty under Florida Statute § 812.019.
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                                       No. 15-41056
       However, this conclusion, by itself, is insufficient to hold that Florida
Statute § 812.019 cannot serve as the predicate for a sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez must also demonstrate “a
realistic probability, not a theoretical possibility,” that Florida “would apply its
statute to conduct falling outside the generic definition” in order to establish
error on the part of the district court. Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007). Sanchez-Rodriguez did so here by pointing to multiple Florida
cases explicitly stating that dealing in stolen property requires no criminal
intent to deprive the owner of rights and benefits of ownership. See, e.g.,
Aversano, 966 So. 2d at 495; Reese, 869 So. 2d at 1227; Glenn, 753 So. 2d at
671.    Because Florida applies this statute to conduct outside the generic
definition of theft in U.S.S.G. § 2L1.2(b)(1)(C), the district court erred in using
Sanchez-Rodriguez’s conviction for dealing in stolen property as the predicate
for a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). 5
       While “certain ‘harmless’ errors do not warrant reversal,” the error here
was not harmless. United States v. Delgado-Martinez, 564 F.3d 750, 752–53
(5th Cir. 2009). Without the eight-level enhancement for an aggravated felony,
Sanchez-Rodriguez’s 2002 Florida conviction would have qualified for only a
four-level enhancement for “any other felony.” See § 2L1.2(b)(1)(D). A four-
level enhancement, combined with a base offense level of eight and a two-level


       5  The Government argues that, “[i]f the defendant knew or believed the property to be
stolen, it logically follows that the defendant intended to deprive the property’s true owner of
the rights and benefits of ownership.” And “the statute’s focus on the defendant’s ‘guilty
knowledge’ suggests that [a] defendant who genuinely, but mistakenly, believes that the
property is not stolen could not be convicted of dealing in stolen property.” However, these
arguments are unpersuasive, as they are directly refuted by at least three decisions from
Florida appellate courts. Moreover, all of the cases the Government cites in support of its
arguments address situations where the State introduced evidence that the defendants knew,
not that they should have known, that the relevant property was stolen. See, e.g., Newberry
v. State, 442 So. 2d 334, 335 (Fla. Dist. Ct. App. 1983) (noting that the State introduced
evidence that the defendants lied about their authority to sell property, suggesting that they
knew that the property was stolen).
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                                     No. 15-41056
reduction for acceptance of responsibility, would have resulted in a total
offense level of 10. 6    A total offense level of 10, combined with a criminal
history category of IV, would have resulted in a Guidelines range of 15 to 21
months of imprisonment. U.S.S.G. Ch. 5, Pt. A. The district court imposed a
sentence of 27 months, which is outside the correct Guidelines range of
imprisonment, and the court did not indicate that it would have imposed an
identical sentence despite any error in its ruling. See Delgado-Martinez, 564
F.3d at 753. Because the correct Guidelines range is less than the 24 to 30
month range Sanchez-Rodriguez originally faced, the error was not harmless.
Accordingly, we must remand the case for re-sentencing pursuant to the proper
Guidelines range.
                                 IV. CONCLUSION
       For the foregoing reasons, we VACATE Sanchez-Rodriguez’s 27-month
sentence and REMAND the case for re-sentencing.




      6  Sanchez-Rodriguez originally received a three-level reduction of his offense level
under U.S.S.G. § 3E1.1(a) and (b). However, given a base offense level of eight and a four-
level enhancement, Sanchez-Rodriguez would only be eligible for a two-level reduction under
U.S.S.G. § 3E1.1(a).
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