     Case: 16-40331     Document: 00514128846      Page: 1   Date Filed: 08/23/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 16-40331                          FILED
                                                                    August 23, 2017

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

v.

FREY PERLAZA-ORTIZ,

             Defendant - Appellant




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before SMITH, PRADO, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Frey      Perlaza-Ortiz   challenges   a     crime-of-violence      sentencing
enhancement predicated upon his prior conviction under Texas Penal Code
§ 22.05(b) (“Section 22.05(b)”). We VACATE the sentence and REMAND for
resentencing.
                                BACKGROUND
      Perlaza-Ortiz is a Colombian citizen who pleaded guilty to unlawfully
reentering the United States. At sentencing, the district court applied a
sixteen-level increase to Perlaza-Ortiz’s base offense level under Section
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2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines. 1 Perlaza-Ortiz
objected to the enhancement, but the district court concluded that his prior
conviction under Section 22.05(b) constituted a crime of violence.
       The    crime-of-violence     enhancement       accounted     for   the    bulk   of
Perlaza-Ortiz’s overall offense level of 21. The presentence report calculated a
criminal history score of 6, which established a criminal history category of III.
       Perlaza-Ortiz’s offense level (21) and criminal history category (III)
generated a guidelines range of 46–57 months’ imprisonment. The court
departed from the PSR’s criminal history computation and applied a criminal
history category of II. This departure produced a guidelines range of 41–51
months’ imprisonment. “[H]aving considered that, as well as all the applicable
[Section] 3553(a) factors,” the court found “that the appropriate sentence . . .
[was] a sentence of 41 months.” Perlaza-Ortiz argues that he should have
received only an eight-level enhancement, which would have lowered the
applicable guidelines range to 18–24 months.
       After announcing the sentence, the district court made the following
statement:
       I also want to be very clear in this case that this sentence, if there
       is any some – for whatever reason, any miscalculation or
       inappropriate determination of a guideline range, based on the
       3553(a) factors, this would definitely still be my sentence as to
       what would be the appropriate sentence with the 3553(a) factors
       taken as a whole.
                             STANDARD OF REVIEW
       “We review de novo whether a prior conviction qualifies as a crime of
violence within the meaning of the Guidelines.” United States v. Rodriguez,
711 F.3d 541, 548 (5th Cir. 2013) (en banc).


      1 Under § 2L1.2(b)(1)(A)(ii) of the 2015 Guidelines, defendants convicted of unlawful
reentry after a prior conviction for a “crime of violence” receive a 16-level enhancement.


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       The Government also argues that any error in the district court’s
interpretation of the guidelines was harmless. “The harmless error doctrine
applies only if the proponent of the sentence convincingly demonstrates both
(1) that the district court would have imposed the same sentence had it not
made the error, and (2) that it would have done so for the same reasons it gave
at the prior sentencing.” United States v. Tanksley, 848 F.3d 347, 353 (5th Cir.)
(bracket omitted) (quoting United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th
Cir. 2010)), supplemented on petition for rehearing en banc, 854 F.3d 284 (5th
Cir. 2017). “[I]t is not enough for the district court to say the same sentence
would have been imposed but for the error.” Id. Instead, “the government ‘must
show that the [sentence] the district court imposed was not influenced in any
way by the erroneous Guideline calculation.’” United States v. Hernandez-
Montes, 831 F.3d 284, 295 (5th Cir. 2016) (quoting United States v. Ramos, 739
F.3d 250, 253 (5th Cir. 2014)).
                                       ANALYSIS
       The district court reached its sentencing decision before the decision in
Mathis v. United States, 136 S. Ct. 2243 (2016). The interpretive tools provided
in Mathis lead us to the conclusion that Section 22.05(b) is not divisible.
Because the government fails to prove Section 22.05(b) divisible, Section
22.05(b) may not be used here as the basis for a crime-of-violence
enhancement. 2 While understandable in light of our pre-Mathis precedents,
the district court’s application of the enhancement constituted legal error. That
error was not harmless.



       2 This holding follows our precedents stating that Section 22.05(b)(2) cannot support
a crime-of-violence enhancement. See United States v. Dixon, 265 F. App’x 383, 385 (5th Cir.
2008) (unpublished); see also United States v. Cabrera, 478 F. App’x 204, 206 (5th Cir. 2012)
(unpublished) (“Under our precedents, section 22.05 of the Texas Penal Code is not, in its
entirety, a ‘crime of violence.’”).


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           I.   Crime-of-violence enhancement
                   A. Legal framework
      Section 22.05(b) reads as follows: “A person commits an offense if he
knowingly discharges a firearm at or in the direction of:
      (1) one or more individuals; or
      (2) a habitation, building, or vehicle and is reckless as to whether the
         habitation, building, or vehicle is occupied.”
Tex. Penal Code § 22.05(b) (West 2017).
      Perlaza-Ortiz and the Government agree that our pre-Mathis precedents
considered § 22.05(b) a divisible statute and deemed § 22.05(b)(1) a crime of
violence. See United States v. Hernandez-Rodriguez, 467 F.3d 492, 493–95 (5th
Cir. 2006). As Perlaza-Ortiz notes, we have also concluded that the statute’s
other subsection, § 22.05(b)(2), does not constitute a crime of violence. See
United States v. Cabrera, 478 F. App’x 204, 206 (5th Cir. 2012) (unpublished);
United States v. Dixon, 265 F. App’x 383, 385 (5th Cir. 2008) (unpublished).
      This case requires us to revisit the question of whether Section 22.05(b)
is divisible, because Mathis supplants any of our precedents inconsistent with
its methodology for identifying “truly divisible statutes.” See Tanksley, 848
F.3d at 351; see also United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016)
(“The Mathis decision is controlling regarding the methodology of the modified
categorical approach, and we must apply its holdings, even if they are contrary
to prior precedent of this court.”). A statute is “divisible” if it “defines multiple
crimes.” Tanksley, 848 F.3d at 350 (bracket omitted) (quoting Mathis,
136 S. Ct. at 2249). If a statute is divisible, the court may use the “modified
categorical approach,” which “permit[s] courts to examine ‘a limited class of
documents (for example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a defendant was
convicted of.’” Id. (quoting Mathis, 136 S. Ct. at 2249).


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      “Some criminal statutes appear divisible but are not.” Id. “These
statutes, rather than providing alternative elements, instead list ‘various
factual means of committing a single element.’” Id. (quoting Mathis, 136 S. Ct.
at 2249)). “In Mathis, the Supreme Court held that the modified categorical
approach is not appropriate for this species of criminal statute.” Id.
      “Mathis provided helpful guidance for determining whether a predicate
statute of conviction is divisible.” United States v. Uribe, 838 F.3d 667, 670 (5th
Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017). “[I]n light of Mathis, we know
that we must determine whether ‘listed items’ in a state statute ‘are elements
or means . . . .’” Tanksley, 848 F.3d at 351 (citation omitted). “Elements must
be agreed upon by a jury.” United States v. Hinkle, 832 F.3d 569, 575 (5th Cir.
2016) (citing Mathis, 136 S. Ct. at 2256). “When a jury is not required to agree
on the way that a particular requirement of an offense is met, the way of
satisfying that requirement is a means of committing an offense[,] not an
element of the offense.” Id. (citing Mathis, 136 S. Ct. at 2256). “[I]f ‘a state court
decision definitively answers the question’ our inquiry is at an end.” Tanksley,
848 F.3d at 351 (citation omitted). As a final note, there is a “demand for
certainty” when evaluating “whether a defendant was convicted of a generic
offense.” United States v. Lobaton-Andrade, 861 F.3d 538, 542 (5th Cir. 2017)
(per curiam) (quoting Mathis, 136 S. Ct. at 2257).
                   B. Section 22.05(b) provides alternative means for
                      committing deadly conduct
      In this case, Texas law suggests, without answering definitively, that
Section 22.05(b)’s subsections provide “alternative means for committing
deadly conduct.” Butler v. State, No. 10-13-00430-CR, 2015 WL 128908, at *12
(Tex. App.—Waco Jan. 8, 2015, pet. ref’d) (not designated for publication); see
also Tobar v. State, No. 14-08-00520-CR, 2009 WL 3050590, at *4–5 (Tex.
App.—Houston [14th Dist.] July 16, 2009, pet. ref’d) (not designated for

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publication); Burns v. State, No. 05-96-01590-CR, 2001 WL 579934, at *5 (Tex.
App.—Dallas May 31, 2001) (not designated for publication). 3
      Though the unpublished Texas decisions stating this proposition are not
precedential, see TEX. R. APP. P. 47, they can provide some help in analyzing
divisibility. We therefore decline to limit our review of Texas case law to
published decisions. Our consideration of unpublished state case law finds
support in United States v. McArthur, where the Eighth Circuit looked to an
unpublished Minnesota Court of Appeals’s decision during its divisibility
analysis. See 850 F.3d 925, 938 (8th Cir. 2017) (“The most helpful Minnesota
court decision, although not precedential, holds that jury unanimity is not
required as to one prong or the other of the burglary statute, thus suggesting
that the alternatives are means rather than elements.”); see also United States
v. Headbird, 832 F.3d 844, 848 (8th Cir. 2016) (relying on two unpublished
intermediate appellate decisions). We do not consider United States v. Gundy,
an Eleventh Circuit ruling that referred in passing to the conclusive effect of
“a precedential state court decision,” to be meaningfully contrary. See 842 F.3d
1156, 1163 (11th Cir. 2016). The Eleventh Circuit did not directly consider
whether a non-precedential state court decision can supply the clear state-law
answer Mathis envisions. See id.
      The Texas indictments underlying Butler and Tobar demonstrate that
Section 22.05(b) provides alternative means of committing deadly conduct. In


      3 The only pertinent contrary authority of which we are aware comes from the dissent
in Gilbert v. State, 429 S.W.3d 19, 26–28 (Tex. App.—Houston [1st Dist.] 2014, pet ref’d)
(Keyes, J., dissenting). Judge Keyes stated that “[d]ischarging a firearm towards a
habitation,” conduct covered by Section 22.05(b)(2), “is a separate offense” from Section
22.05(b)(1)’s proscription on discharging a firearm towards an individual. Id. at 26. More
importantly, in contrast to the cases cited above, the Gilbert dissent did not analyze the
question of whether jurors must agree upon how a defendant violated Section 22.05(b) when
the defendant is charged with conduct covered by both subsections. It does not, therefore,
bear directly on our divisibility analysis.


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both cases, the indictments charged, in separate paragraphs of a single count,
that the defendant discharged a firearm towards an individual (Section
22.05(b)(1) conduct) and discharged a firearm in the direction of a habitation
while being reckless as to whether it was occupied (Section 22.05(b)(2)
conduct). See Butler, 2015 WL 128908, at *1–2; see also Tobar, 2009 WL
3050590, at *2. Under the Texas Code of Criminal Procedure, “[a] ‘count’ [is]
the proper method of charging an offense,” while “the proper method of
charging different ways of committing an offense [is] multiple ‘paragraphs’.”
Romine v. State, 722 S.W.2d 494, 501 (Tex. App.—Houston [14th Dist.] 1986,
pet. ref’d) (construing Tex. Crim. Proc. Code Ann. art. 21.24); see also Renfro v.
State, 827 S.W.2d 532, 535 (Tex. App.—Houston [1st Dist.] 1992) (“[T]he term
‘count’ is used to charge the offense itself, and a ‘paragraph’ is a portion of a
count, which charges a method of committing the offense.”). In the absence of
any contrary indication, we assume that the indictments underlying Butler
and Tobar were properly drafted. Their composition further clarifies that
Section 22.05(b)’s subsections contain alternative means of committing the
same offense.
      The statute’s legislative history points to the same conclusion. In 1993,
Texas added the entirety of Section 22.05(b) to what had formerly been titled
the “reckless conduct” statute. See 1993 Tex. Sess. Law Serv. Ch. 900 (S.B.
1067) (West). The Texas legislature’s final conference committee report said
the relevant portion of the revision “add[ed] to the offense (formerly ‘reckless
conduct’) the conduct of knowingly discharging a firearm at or in the direction
of one or more individuals or a habitation, building, or vehicle, and is reckless
as to whether the habitation, building, or vehicle is occupied . . . .” S.B. 1067,
73d Regular Sess., Conf. Comm. Rep., “Side by Side Analysis” at 10 (May 23,




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1993). 4 Notably, this document characterized Section 22.05(b)’s subsections as
alternative “conduct” that could constitute a singular “offense.” See id.; see also
Tex. Senate Research Center, Bill Analysis (S.B. 1067) at 5 (Aug. 11, 1993)
(stating that S.B. 1067 “add[ed] to the offenses under [Section 22.05] the
offense of knowingly discharging a firearm at or in the direction of one or more
individuals or a habitation, building, vehicle, and is reckless as to whether the
habitation, building, or vehicle is occupied”).
      Even if we considered Texas law unclear despite the case law and
legislative history discussed above, we would still resolve this case in
Perlaza-Ortiz’s favor. “[I]f state law fails to provide clear answers, federal
judges have another place to look: the record of a prior conviction itself.”
Mathis, 136 S. Ct. at 2256. Mathis counsels that “an indictment and jury
instructions could indicate, by referencing one alternative term to the
exclusion of all others, that the statute contains a list of elements.” Mathis, 136
S. Ct. at 2257. Here, there can be no doubt that the indictment references “one
. . . term to the exclusion of all others” 5; it charges Perlaza-Ortiz unmistakably
with a violation of 22.01(b)(1), and makes no mention of habitations, buildings,
or vehicles. Still, the indictment, along with the other arguments the
Government presents, would not be enough to establish with the requisite
“certainty” that Perlaza-Ortiz was convicted of a generic offense, especially
when it is balanced against the clear, if unpublished, Texas case law. See
Lobaton-Andrade, 861 F.3d at 542 (quoting Mathis, 136 S. Ct. at 2237). In such




      4 A compilation of legislative history is available at
http://www.lrl.state.tx.us/legis/BillSearch/text.cfm?legSession=73-0&billtypeDetail=SB&
billNumberDetail=1067&billSuffixDetail=&startRow=1&IDlist=&unClicklist=&number=10
0.
      5   Because Perlaza-Ortiz pleaded guilty, there is no jury charge.

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uncertain circumstances, the Government has not shown that the statute is
divisible. The district court’s finding otherwise constituted legal error.
          II.   The error was not harmless
      The Government has not carried its burden of demonstrating that
Perlaza-Ortiz’s sentence “was not influenced in any way by the erroneous
Guideline calculation.’” See Hernandez-Montes, 831 F.3d at 295 (quoting
Ramos, 739 F.3d at 253). At sentencing, the district court calculated a 41-to-51
month post-departure range based in part on the crime-of-violence
enhancement. “Then, the Court, having considered that, as well as all the
applicable [Section] 3553(a) factors, . . . [found] that the appropriate sentence
. . . [was] a sentence of 41 months.” “We . . . conclude that the district court’s
selection of the bottom of the incorrect guideline range indicates that the
improper guideline calculation influenced the sentence.” United States v.
Martinez-Romero, 817 F.3d 917, 926 (5th Cir. 2016). We therefore decline to
apply the harmless-error doctrine.
                                CONCLUSION
      For the reasons discussed above, we VACATE Perlaza-Ortiz’s sentence
and REMAND for resentencing.




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