     Case: 13-40122       Document: 00512385627         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 13-40122
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICARDO MORALES-RAMIREZ, also known as Ricardo Ramirez Morales,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-691-1


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       Ricardo Morales-Ramirez (Morales) pleaded guilty of illegal reentry
following deportation and was sentenced to a 63-month term of imprisonment
and to a three-year period of supervised release. Morales asserts that the
district court erred in overruling his objection to the enhancement of his
sentencing guidelines offense level by 16 levels because he had a prior conviction
for a crime of violence, that is, the Texas offense of burglary of a habitation. See
U.S.S.G. § 2L1.2(b)(1)(A)(ii).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-40122     Document: 00512385627      Page: 2   Date Filed: 09/25/2013

                                  No. 13-40122

      Morales was charged in the state indictment under both TEX. PENAL CODE
ANN. § 30.02(a)(1) and (a)(3), which provide different means of committing
burglary of a habitation. This court has concluded that an offense under
§ 30.02(a)(1) constitutes a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii).
United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.), cert. denied, 2013
WL 1473651 (May 13, 2013) (No. 12-9676). Conversely, this court has held that
an offense under § 30.02(a)(3) is not a “violent felony” under 18 U.S.C. 924(e)
because it lacks the requisite “element of intent to commit a felony, theft, or
assault at the moment of entry.” United States v. Constante, 544 F.3d 584, 587
(5th Cir. 2008); see also United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011)
(holding that, because of the similarities between § 2L1.2(b)(1)(A) and § 924(e),
this court “treat[s] cases dealing with these provisions interchangeably”); United
States v. Trevino-Rodriguez, 463 F. App’x 305, 307-08 (5th Cir. 2012) (applying
Constante in § 2L1.2(b)(1)(A)(ii) context). The Government argues that, in
pleading guilty, Morales admitted all of the charges in the indictment, including
subsection (a)(1), which does meet the definition of a generic burglary. This
contention is without merit.
      Unlike United States v. Cantu, 340 F. App’x 186, 191-92 (5th Cir. 2009),
cited by the Government, the record in this case contains no evidence reflecting
the specific subsection to which Morales pleaded guilty, nor does it contain the
factual basis for his plea. Thus, we cannot determine whether Morales pleaded
guilty to an offense that meets the definition of a generic burglary. See United
States v. Morales-Martinez, 496 F.3d 356, 359-60 (5th Cir. 2007); see also United
States v. Beltran-Ramirez, 266 F. App’x 371, 372 (5th Cir. 2008). Accordingly,
the district court erred in imposing the 16-level enhancement. Because the
Government cannot demonstrate convincingly that the district court would have
imposed the same sentence if it had not imposed the 16-level enhancement, the
error was not harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 713-14
(5th Cir. 2010); see also Trevino-Rodriguez, 463 F. App’x at 308.

                                        2
    Case: 13-40122     Document: 00512385627     Page: 3   Date Filed: 09/25/2013

                                  No. 13-40122

      Morales contends that the district court erred in refusing to award a third-
level reduction for acceptance of responsibility because the Government refused
improperly to move for the adjustment based on Morales’s refusal to enter into
a plea agreement containing an appeal waiver. He concedes that this issue is
foreclosed by United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008), and he
raises it to preserve it for further review.
      The judgment is VACATED, and the case is REMANDED for resentencing.




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