                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                          REVISED AUGUST 10, 2006
                                                                       July 14, 2006
                       UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit                Charles R. Fulbruge III
                                                                         Clerk


                                No. 03-40658




                         UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,


                                   VERSUS


                           LUIS MENDOZA-SANCHEZ,


                                                       Defendant-Appellant.



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




Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:

                                       I.

     Luis Mendoza-Sanchez (Mendoza) pled guilty to violating 8

U.S.C. § 1326(a) and (b)(2) by being found in the United States,

without permission, following both his conviction for an aggravated

felony   and   later    deportation.        The   district   court   increased

Mendoza’s offense level by 16 levels because his deportation

occurred following his conviction of a crime of violence.               See § 2
L1.2(b)(1)(A)(ii).         This sixteen level increase was based on

Mendoza’s conviction in circuit court in Johnson County, Arkansas

for   the   offense   of   burglary.        The   district   court   overruled

Mendoza’s objection to the increase and sentenced him to a 46 month

term of imprisonment, along with a three year tern of supervised

release.    Mendoza them filed a timely notice of appeal.

                                   II.

                                       A.

      Mendoza’s primary argument on appeal is that the district

court erred by enhancing his base offense level 16 levels under §

2L1.2(b)(1)(A)(ii), based on his Arkansas conviction of burglary.

Mendoza argues that the conviction is not a “crime of violence”.

We review the district court’s application of the sentencing

guidelines de novo and the findings of fact for clear error.              U.S.

v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.), en banc, cert.

denied, 541 U.S. 965 (2004).

      The 20021 version of § 2L1.2(b)(1)(A)(ii) provides for a 16-

level increase in a defendant’s base offense level if he was

previously deported after being convicted of a crime of violence.

The Application Notes define a “crime of violence” either as one of

a list of enumerated offenses or as “an offense under federal,

state, or local law that has as an element the use, attempted use,


  1
    Because Mendoza-Sanchez committed his offense on December 24,
2002, and was sentenced on May 5, 2003, the 2002 version of the
Sentencing Guidelines apply.

                                       2
or threatened use of physical force against the person of another.”

§ 2L1.2, comment. (n.1(B)(ii)(I), (II)) (2002).           The enumerated

offenses are “murder, manslaughter, kidnapping, aggravated assault,

forcible sex offenses (including sexual abuse of a minor), robbery,

arson, extortion, extortionate extension of credit, and burglary of

a dwelling.”     § 2L1.2, comment. (n.1(B)(ii)(II)) (2002).

     When determining whether a prior offense constitutes a crime

of violence for purposes of § 2L1.2(b)(1)(A)(ii), this court uses

a different methodology depending on whether the prior offense

constitutes a crime of violence (1) because it is an enumerated

offense or (2) because it is “an offense under federal, state, or

local law that has as an element the use, attempted use, or

threatened use of physical force against the person of another.”

§ 2L1.2, comment. (n.1(B)(ii)(I), (II)). In determining whether an

offense has as an element the use, attempted use, or threatened use

of physical force against the person of another, this court uses

the categorical approach set forth in Taylor v. United States, 495

U.S. 575, 600-02 (1990), and examines the elements of the offense,

rather than the facts underlying the conviction. See United States

v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc),

cert. denied, 125 S. Ct. 932 (2005).               Under the categorical

approach,   if   the   statute   of   conviction   contains   a   series   of

disjunctive elements, this court may look to the indictment and, if

necessary, the jury instructions, for the limited purpose of

determining which of a series of disjunctive elements a defendant’s

                                      3
conviction satisfies.             Id. at 258. However, this court uses a

“common sense approach” to determine whether a defendant’s offense

qualifies       as     an   offense   enumerated   in   §    2L1.2,   comment.

(n.1(B)(ii)(II)).           See United States v. Izaguirre-Flores, 405 F.3d

270, 273-75 (5th Cir. 2005).

       In the instant case, the Government does not contend that the

Arkansas burglary statute has as an element the use, attempted use,

or threatened use of physical force against the person of another.

Instead, the Government argues that Mendoza-Sanchez’s Arkansas

burglary offense constitutes the enumerated offense of burglary of

a dwelling for purposes of § 2L1.2(b)(1)(A)(ii).             Accordingly, this

court must use the common sense approach to determine whether the

Arkansas offense of burglary is the equivalent of the enumerated

offense of burglary of a dwelling “as that term is understood in its

ordinary, contemporary, [and] common meaning.”               Izaguirre-Flores,

405 F.3d at 274-75 (internal quotation marks and citation omitted).

       The Arkansas statute under which Mendoza-Sanchez was convicted2

provided that “[a] person commits burglary if he enters or remains

unlawfully in an occupiable structure of another person with the

purpose    of        committing    therein   any   offense     punishable   by


   2
     In district court, both Mendoza-Sanchez and the probation
officer who prepared the PSR erroneously relied on the current
version of Ark. Crim. Code 5-39-201, which became effective on
August 13, 1993. As Mendoza-Sanchez pleaded guilty of burglary and
was sentenced to five years of probation on July 2, 1993, he
necessarily was convicted under the prior version of the statute.


                                         4
imprisonment.”         Ark. Code Ann. 5-39-201(a)(1987).       Mendoza-Sanchez

contends that the Government cannot establish that he committed a

“burglary of a dwelling” as that term is enumerated under § 2L1.2,

comment. (n.1(B)(ii)(II))(2002), because the broad definition of

burglary   in    the     Arkansas   statute   encompasses     the    burglary   of

structures other than dwellings.            Mendoza-Sanchez also points out

that neither the charging instrument3 nor the judgment in his case

establishes that his offense involved the burglary of a dwelling.

The parties agree that a “dwelling” is commonly understood as

meaning “a house or other structure in which a person lives.”

       In Izaguirre-Flores, this court noted that when called on to

determine whether a violation of a state statute constitutes an

enumerated offense for purposes of § 2L1.2(b)(1)(A)(ii), “we have

held   that     when    the   enumerated    offense   under    the    Guidelines

encompasses a narrower range of conduct than that prohibited by the

state statute, we cannot hold as a matter of law that the sentencing

enhancement is proper.”         405 F.3d at 276-77.     Moreover, this court

has held that the Texas offense of burglary of a building, as set

forth in TEX. PENAL CODE ANN. § 30.02 (Vernon’s 1974), is not the

equivalent of the enumerated offense of burglary of a dwelling. See

United States v. Rodriguez-Rodriguez, 388 F.3d 466, 467 & n.6 (5th


   3
    The information in Mendoza-Sanchez’s case charged that he did
“willfully and unlawfully enter and remain unlawfully in an
occupiable structure of another person, to-wit: Diana Mull, Rt. 1
Box 508, London, Arkansas, with the purpose of committing therein
theft of property, the same being a Class B Felony . . . .”

                                        5
Cir. 2004).        Texas law defines a “building” as “any enclosed

structure intended for use or occupation as a habitation or for some

purpose of trade, manufacture, ornament, or use.”                   TEX. PENAL CODE

ANN.    §    30.01(2)    (Vernon’s   1974).      The    Arkansas    definition   of

“occupiable structure,” see Ark. Code Ann. § 5-39-101, like the

Texas       definition    of   “building,”    includes     structures    used    for

purposes other than “dwelling.”              The Arkansas offense of burglary

cannot therefore be considered the equivalent of the enumerated

offense of burglary of a dwelling.

       The Government argues that the district court did not err in

enhancing Mendoza-Sanchez’s sentence because according to the PSR,

the offense report pertaining to Mendoza-Sanchez’s burglary case

characterized the building as a residence.                   But we have never

authorized consideration of the defendant’s conduct as reflected in

police reports or similar instruments to determine whether that

conduct constitutes a crime of violence.               See Izaguirre-Flores, 405

F.3d at 274 n.14.         We need not decide in this case whether facts

developed by the probation officer and reported in the PSR can be

used for this purpose because, as discussed below, Mendoza admitted

he entered a house or home.

       At the rearraignment, the following exchange took place with

the defendant, after the district court asked                      Mendoza-Sanchez

whether it was true that he had been convicted of an aggravated

felony:

       MR. ANDY GUARDIOLA: Felony Burglary is a five-year sentence,

                                         6
                              your Honor.

      THE COURT:              Burglary

      THE INTERPRETER:        A house.      A home.

      THE COURT:              You went to the                 house without
                              permission, right?             Do you accept
                              that?

      THE DEFENDANT:          Yes.

      In the context of this exchange, it is clear to us that the

court’s question “you went into the house without permission”

referred back to the interpreter’s use of “house” and “home” as

synonymous.     When Mendoza’s admission that he entered the home (or

dwelling) without permission is added to the allegations of the

information, this adequately establishes his conviction of a crime

of violence.    We are satisfied that the district court can use all

facts admitted by the defendant in determining whether the prior

conviction qualifies as an enumerated offense under § 2L1.2.

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.),

cert. denied, 126 S. Ct. 267, 163 L. Ed. 2d 240 (2005).                       The

district court did not err in imposing the 16 level increase.

                                      B.

      Mendoza-Sanchez    next      challenges    the    constitutionality      of

§   1326(b)’s   treatment     of   prior    felony     and    aggravated   felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey,   530    U.S.   466   (2000).       Mendoza-Sanchez’s      argument    is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

                                        7
(1998).

                                  C.

     In a supplemental letter brief, Mendoza-Sanchez argues that his

sentence is unconstitutional and should be vacated because it was

imposed under the mandatory United States Sentencing Guidelines held

unconstitutional in Booker.     Mendoza-Sanchez   did not raise his

challenge to the mandatory application of the Sentencing Guidelines

in the district court. Accordingly, this court reviews the district

court’s sentencing decision for plain error only.   United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126

S. Ct. 267 (2005).

     By sentencing Mendoza-Sanchez under a mandatory guidelines

regime, the district court committed what this court refers to as

Fanfan error.   United States v. Walters, 418 F.3d 461, 463-64 (5th

Cir. 2005).     “It is clear after Booker that application of the

Guidelines in their mandatory form constitutes error that is plain.”

Valenzuela-Quevedo, 407 F.3d at 733.      Thus, Mendoza-Sanchez has

satisfied the first and second prongs of the plain error analysis.

Nevertheless, Mendoza-Sanchez has not satisfied the third prong of

the plain error analysis by demonstrating that the district court’s

Fanfan error affected his “substantial rights.”     See id.   To make

such a showing, Mendoza-Sanchez must demonstrate that the error

“affected the outcome of the district court proceedings” such that

there is a probability of error “sufficient to undermine confidence

in the outcome.”     See id. (internal quotation marks and citations

                                   8
omitted).     Specifically,   Mendoza-Sanchez      must   show    that    the

sentencing judge, sentencing under an advisory scheme rather than

a mandatory one, would have reached a different result.           See United

States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005).

     The district court sentenced Mendoza-Sanchez to 46 months of

imprisonment, a sentence at the lowest end of his sentencing

guidelines range.     However, the fact that the sentencing judge

imposed the minimum sentence under the sentencing guidelines range,

alone, is no indication that the judge would have reached a

different conclusion under an advisory scheme.        See United States

v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir.), cert. denied, 126 S.

Ct. 264 (2005).   Nothing in the record indicates that the district

court would have imposed a significantly different sentence if the

guidelines were advisory only.    See Valenzuela-Quevedo, 407 F.3d at

733-34.     Accordingly,   Mendoza-Sanchez   has   not    shown    that   the

district court committed reversible plain error in imposing his

sentence.   See id.

     AFFIRMED.




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