     Case: 16-20035      Document: 00513954537         Page: 1    Date Filed: 04/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                      No. 16-20035
                                                                              Fifth Circuit

                                                                            FILED
                                                                        April 17, 2017

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee

v.

ISRAEL MOLINA-MONTIEL, also known as Israel Molina Montiel, also
known as Israel M. Montiel, also known as Israel Montiel,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-439-1


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The defendant Molina-Montiel is serving a 24-month sentence for illegal
entry after a prior aggravated felony conviction in Texas. Eight offense points
were added for his prior conviction and his contention on appeal is that
enhancement of offense points was error. No objection was made at trial.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20035
      The Guidelines for obstruction of justice as an aggravated felony
enhancement for this conviction:          (1) “either active interference with
proceedings of a tribunal or investigation, or action or a threat of action against
those who would cooperate in the process of justice”; and (2) a “specific intent
to interfere with the process of justice.” United States v. Gamboa-Garcia, 620
F.3d 546, 550 (5th Cir. 2010). The Texas obstruction and retaliation statute
provides:
      (a)   A person commits an offense if he intentionally or knowingly
            harms or threatens to harm another by an unlawful act:
            (1)    in retaliation for or on account of the service or status
                   of another as a:
                   (A)    public servant, witness, prospective witness, or
                          informant; or
                   (B)    person who has reported or who the actor knows
                          intends to report the occurrence of a crime; or
            (2)    to prevent or delay the service of another as a:
                   (A)    public servant, witness, prospective witness, or
                          informant; or
                   (B)    person who has reported or who the actor knows
                          intends to report the occurrence of a crime.
Tex. Penal Code § 36.06 (2013).
      The defendant pleaded guilty and stated in court that he had threatened
harm to a person in relation for his service as a witness. Can we then say that
the defendant had been convicted of interference with the process of justice?
Not if we can rely only on the statute and judgment. The Texas statute is too
broad and we cannot divide all of its provisions to know exactly the conviction
of the defendant. Looking to the Texas law and the opinions of the Court of
Criminal Appeals, we could not say there was a fit between the statute and the
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                                  No. 16-20035
judgment of conviction.        The government’s contrary argument is based
primarily on Cada v. State of Texas, 334 S.W.3d 766 (Tex. Ct. Crim. App. 2011).
Properly understood, that case and Kitchens v. State, 823 S.W.2d 256 (Tex.
Crim. App. 1991), confirm that Section 36.06 criminalizes a broader swath of
conduct than is covered by the Guidelines obstruction-of-justice enhancement.
      In discussing Section 36.06, the Texas Court of Criminal Appeals
restated the rule that “the State may plead in the conjunctive and charge in
the disjunctive.” Cada, 334 S.W.3d at 771 (citing Kitchens, 823 S.W.2d at
258). Kitchens, in turn, explained “that alternate pleading of the differing
methods of committing one offense may be charged in one indictment.” 823
S.W. 2d at 258. The court then elaborated: “It is appropriate where the
alternate theories of committing the same offense are submitted to the jury in
the disjunctive for the jury to return a general verdict if the evidence is
sufficient to support a finding under any of the theories submitted.” Id. Juror
unanimity is not required with respect “preliminary factual issues”
representing these different theories of how the offense might have been
committed. Id. (quoting Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 2497
(1991) (plurality opinion)).
      Kitchens was not speaking of Section 36.06, but Cada was.              And
the Cada court relied on Kitchens to explain why there was no error for an
indictment charging an offense under Section 36.06 to “list ‘a public servant,
witness, prospective witness, or informant,’ and then allow jurors individually
to decide into which of the categories a victim fit. 334 S.W.3d at 771. No
unanimity was required; what was needed was for each juror to find beyond a
reasonable doubt that the victim fit into one of those four categories.
Because jurors had that flexibility, some may have concluded that the victim
was a “public servant,” a category of individuals who are not all involved with
the provision of justice as required by the Guidelines. See, e.g., In re P.N., No.
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                                  No. 16-20035
03-04-00751-CV, 2006 WL 2190577, at *6 (Tex. App. Aug. 4, 2006)
(unpublished) (public school teacher); Martinez v. State, No. 04-02-00792-CR,
2004 WL 202864, at *2–3 (Tex. App. Feb. 4, 2004) (unpublished) (elementary
school “data entry clerk”), In re J.L. O., No. 03-01-00632-CV, 2002 WL
1804951, at *3 (Tex. App. Aug. 8, 2002) (unpublished) (“school district
employee”); see also Tex. Penal Code § 1.07(a)(41) (defining the term public
servant for purposes of the Penal Code).
      What is required or allowed in a direct appeal by the Texas court is very
different from what the record of previous conviction to enhance the offense
points in a federal case requires.      And here our record does not show a
conviction for any specific element of the statute fitting the Guidelines.
      Enhancement of the sentence by the offense points was error and, even
though the Government says this is a novel error and not exactly error, we rule
that it is plain error. Finding the first three prongs of plain error satisfied, we
reach the fourth and choose not to affirm with the effect of the error on the
sentencing guidelines for defendant.
      The sentence is VACATED and the cause is REMANDED for
resentencing.




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