                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 18, 2012
                                      PUBLISH                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
 v.                                                       No. 10-1529
 BYRON VENTURA-PEREZ, a/k/a
 Byron Espino,

              Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
                   (D.C. NO. 1:10-CR-00296-DME-1)


Howard A. Pincus, Assistant Federal Public Defender, (Raymond P. Moore,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant - Appellant.

James C. Murphy, Assistant United States Attorney, (John F. Walsh, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff -
Appellee.


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.


      In August 2010, Defendant Byron Ventura-Perez pleaded guilty in the

United States District Court for the District of Colorado to illegal reentry after
deportation subsequent to an aggravated-felony conviction. See 8 U.S.C.

§ 1326(a), (b)(2). He raises two challenges on appeal. First, he contends that the

district court miscalculated his offense level under the Sentencing Guidelines.

The court increased his offense level by 16 on the ground that his Texas

conviction of burglary of a habitation was for “burglary of a dwelling” and

therefore a crime of violence under USSG § 2L1.2 cmt. 1(B)(iii) (defining crime

of violence). See id. § 2L1.2(b)(1)(A)(ii) (imposing 16-level enhancement if prior

felony conviction was for crime of violence). Defendant asserts, however, that

the Texas statute encompasses offenses in addition to burglary of a dwelling; that

the particulars of his prior conviction are irrelevant; and that even if they are

relevant, the record did not establish that his conviction had been for burglary of

a dwelling. Second, he contends that when the court imposed sentence, it

improperly refused to consider sentencing disparities created by fast-track

programs in other districts.

      We have jurisdiction under 28 U.S.C. § 1291 and affirm. On the first

contention we hold that even if the Texas offense of burglary of a habitation

encompasses more than burglary of a dwelling, the particulars of Defendant’s

prior conviction are relevant and his counsel admitted at sentencing in federal

court that he had been convicted of burglary of an apartment, which is clearly

burglary of a dwelling. Although he argues on appeal that his attorney’s

statement was ambiguous and erroneous, we see no ambiguity, and he cannot

                                         -2-
challenge on appeal the accuracy of the statement. On the second contention we

follow recent circuit precedent and hold that Defendant cannot complain of

sentencing disparities because he did not present to the sentencing court any

evidence that he would have been eligible for fast-track treatment in another

district.

I.     BACKGROUND

       In 2004 Defendant Byron Ventura-Perez, a native of Guatemala living in

Houston, was convicted of burglary of a habitation under Texas law. After

serving 20 months in prison, he was deported. Six months later he returned to the

United States, residing first in Texas before moving to Colorado in 2009, where

he lived with his fiancee. In May 2010 the two had a domestic dispute and

Defendant was arrested. He pleaded guilty to misdemeanor battery in state court.

       This arrest led to his federal prosecution and guilty plea. At sentencing,

the district court adopted the offense-level calculation in the presentence report

(PSR). The PSR set Defendant’s base offense level at 8, see USSG § 2L1.2(a),

subtracted 3 levels for acceptance of responsibility, see id. § 3E1.1, and added 16

levels after classifying the 2004 burglary as a crime of violence, see id.

§ 2L1.2(b)(1)(A)(ii). The total offense level was therefore 21. Because his two

prior convictions put him in criminal-history category III, his guideline

sentencing range was 46–57 months. See id. ch. 5, pt. A.




                                         -3-
      Before the sentencing hearing Defendant had submitted a sentencing

statement and motion for variance that raised four arguments for a below-

guidelines sentence: (1) the district court should disregard the 16-level

enhancement because the promulgation of illegal-entry guidelines had exceeded

the United States Sentencing Commission’s institutional role; (2) it would be

unreasonable to “double count” his 2004 burglary conviction—using it both to

establish his criminal-history score and to increase significantly his offense level;

(3) USSG § 2L1.2 fosters unwarranted sentencing disparities, thereby violating

the precepts of 18 U.S.C. § 3553(a); and (4) the lack of a fast-track program for

illegal-reentry cases in Colorado would lead to unwarranted sentencing disparities

if the court did not exercise its discretion to vary from the guidelines. (Fast-track

programs can be instituted for a district by the United States attorney to allow the

court, on motion from the government, to depart downward from the guidelines

offense level by up to four levels. See Prosecutorial Remedies and Other Tools to

End the Exploitation of Children Today Act (“PROTECT Act”), Pub. L.

No. 108-21, § 401(m), 117 Stat. at 675 (2003); USSG § 5K3.1; see generally

United States v. Lopez-Macias, 661 F.3d 485, 486–87 (10th Cir. 2011).)

      The district court rejected these arguments. In particular, it upheld the

16-level enhancement for crimes of violence. Comparing that enhancement to the

8-level enhancement for a conviction for an aggravated felony, see USSG




                                          -4-
§ 2L1.2(b)(1)(C); see also id. § 2L1.2 cmt. 3(A) (adopting definition of

aggravated felony in 8 U.S.C. § 1101(a)(43)), the court said:

      [T]he offense is probably more severe than an aggravated felony
      because the Congress has determined that there is a special fear that
      happens when somebody enters into a habitation and dwelling,
      particularly when it’s occupied, and a particular high risk of violence
      when that happens that the Court simply cannot set aside completely.

R., Vol. 2 at 62. Nevertheless, the court decided to vary downward from the

guidelines. It described Defendant as “industrious” and said that “if [Defendant]

can conquer alcoholism, . . . there’s every hope that he will be able to avoid these

problems again.” Id. at 63. To quantify the downward variance, it “split the

difference between an eight-level enhancement for aggravated felony and a

16-level enhancement for [a] crime of violence” and treated Defendant as if he

had received a 12-level enhancement. Id. at 62–63. Defendant’s sentencing

range was thereby reduced to 30–37 months, and the court imposed a sentence of

30 months’ imprisonment. In concluding its explanation, the court said:

      Even though the Court is disregarding the disparity of the Fast Track,
      it can’t ignore the fact that it’s there. Even though the Court is
      disregarding the fact that this prior Texas conviction is being used on
      both the offense level and the level of his criminal history, the Court
      can’t deny that it’s there.

Id. at 66–67.




                                         -5-
II.   DISCUSSION

      A.    Treatment of Texas Offense as Crime of Violence

      The guidelines definition of crime of violence lists a number of offenses,

including “burglary of a dwelling,” as crimes of violence. USSG § 2L1.2 cmt.

1(B)(iii). Defendant argues that the crime-of-violence enhancement should not

have been applied to him because the Texas burglary-of-a-habitation statute

includes burglaries of structures “appurtenant to” a habitation, and would

therefore include burglaries of premises that are not dwellings. Aplt. Br. at 18.

      The statutory offense to which Defendant pleaded guilty, Texas Penal Code

Ann. § 30.02 (West 2011), provides in part:

      (a) A person commits an offense if, without the effective consent of
      the owner, the person:
            (1) enters a habitation, or a building (or any portion of a
            building) not then open to the public, with intent to commit a
            felony, theft, or an assault[.]

Texas law defines habitation as follows:

      “Habitation” means a structure or vehicle that is adapted for the
      overnight accommodation of persons, and includes:
            (A) each separately secured or occupied portion of the
            structure or vehicle; and
            (B) each structure appurtenant to or connected with the
            structure or vehicle.

Texas Penal Code Ann. § 30.01(1) (emphasis added).

      When determining whether a prior conviction was for a crime of violence

under USSG § 2L1.2, this circuit follows the same approach set forth by the


                                        -6-
Supreme Court for determining whether a prior conviction was for a violent

felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which

establishes a mandatory minimum sentence of 15 years if the defendant has three

previous convictions for violent felonies or serious drug offenses. See United

States v. Torres-Romero, 537 F.3d 1155, 1158 (10th Cir. 2008). In Shepard v.

United States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S. 575

(1990), the Supreme Court stated that the sentencing court should ordinarily apply

a “categorical approach” that limits the sentencing court’s inquiry to determining

whether the statutory definition of the prior offense satisfies the definition of

violent felony. See Shepard, 544 U.S. at 17 (internal quotation marks omitted);

Taylor, 495 U.S. at 602. But a modification to that approach is proper if the

statute’s language encompasses both violent felonies and other crimes. As the

Court recently explained:

      When the law under which the defendant has been convicted contains
      statutory phrases that cover several different generic crimes, some of
      which [are violent felonies] and some of which [are] not, the
      modified categorical approach that we have approved permits a court
      to determine which statutory phrase was the basis for the conviction
      by consulting the trial record—including charging documents, plea
      agreements, transcripts of plea colloquies, findings of fact and
      conclusions of law from a bench trial, and jury instructions and
      verdict forms.

Johnson v. United States, 130 S. Ct. 1265, 1273 (2010) (citation and internal

quotation marks omitted); see Nijhawan v. Holder, 129 S. Ct. 2294, 2303 (2009)

(courts can use such documents to determine “which statutory phrase (contained

                                          -7-
within a statutory provision that covers several different generic crimes) covered

a prior conviction”); Torres-Romero, 537 F.3d at 1158 (referring to the use of the

“modified categorical approach” in our circuit).

      Defendant contends that his Texas offense was not a crime of violence

under the categorical approach and that it would be improper to apply the

modified categorical approach to the Texas statute. In district court he argued

that “burglary of a habitation” is a broader offense than the offense of “burglary

of a dwelling” under the guidelines because the Texas statute encompasses

burglary of a “vehicle that is adapted for the overnight accommodation of

persons,” Texas Penal Code Ann. § 30.01(1) (emphasis added). He argued that

the guidelines term burglary of a dwelling incorporates the generic definition of

burglary, which does not encompass burglary of a vehicle. On appeal, however,

he has abandoned that argument. Instead, he contends that the Texas statutory

offense is broader than burglary of a dwelling because it encompasses burglary of

a “structure appurtenant to” a dwelling, id., which could include, say, a tool shed

“at a considerable distance from the residence.” Aplt. Br. at 23.

      Before turning to the merits, we note that our review is only for plain error

because Defendant’s argument was not raised in district court. See United States

v. Dazey, 403 F.3d 1147, 1173–74 (10th Cir. 2005).

      To establish plain error, [the Defendant] must demonstrate that the
      district court (1) committed error, (2) that the error was plain, and (3)
      that the plain error affected his substantial rights. If all these

                                         -8-
      conditions are met, a court reviewing the error may exercise
      discretion to correct it if [4] the error seriously affects the fairness,
      integrity, or public reputation of judicial proceedings.

Id. at 1174 (internal citations omitted). “The defendant has the burden of

establishing all four elements of plain error.” United States v. Hall, 625 F.3d

673, 684 (2010). We may well be able to reject Defendant’s argument on any of

the four elements of plain-error review, but we limit ourselves to discussion of

the first element.

      We fail to see any error in the district court’s treatment of Defendant’s

Texas conviction as a conviction for a crime of violence. Although we assume,

without deciding, that the Texas statutory offense includes more than burglary of

a dwelling under the guidelines, we reject Defendant’s contention that this ends

the inquiry. He maintains that the modified categorical approach can be applied

only if the statute of conviction is a “divisible” one—one that “contains separate

element sets, at least one of which would show the prior conviction was

necessarily for a qualifying offense and at least one of which would not permit

that conclusion.” Aplt. Reply Br. at 12–13. Under this definition of divisible, he

asserts, the Texas statute is not divisible and therefore not amenable to the

modified categorical approach.

      Rather than relying on Defendant’s definition of divisible, we will start our

analysis with the Supreme Court’s description of the predicate for the modified

categorical approach: a law that “contains statutory phrases that cover several

                                           -9-
different generic crimes, some of which [are crimes of violence] and some of

which [are] not.” Johnson, 130 S. Ct. at 1273. The “statutory phrases” need not

be in separate sections, subsections, or paragraphs of the statute, nor need they be

long. Indeed, as we shall see, the phrase may apparently even be one taken from

a judicial opinion rather than a statute (at least when dealing with common-law

crimes).

      We draw this conclusion from Johnson’s citation, with implicit approval, to

lower-court decisions using the modified categorical approach. In Johnson the

Supreme Court considered whether the Florida offense of battery was a violent

felony under the ACCA because it “has as an element the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(I). The Court construed physical force to require “violent force.”

Johnson, 130 S. Ct. at 1271. Accordingly, conviction of the Florida offense was

not necessarily a violent felony because a Florida battery could be a mere

touching. See id. at 1269–70. The Court rejected the dissent’s concerns about the

practical effect of its decision by pointing to the availability of the modified

categorical approach. See id. at 1273. It illustrated the application of that

approach to the offense of battery by referring to three lower-court decisions. See

id. (“Indeed, the Government has in the past obtained convictions under the

[ACCA] in precisely this manner. See, e.g., [citing three decisions]”). (In




                                         -10-
Johnson itself the record did not support use of the modified approach. See id. at

1269.)

         One of the cited opinions was United States v. Simms, 441 F.3d 313 (4th

Cir. 2006), which considered a Maryland conviction for battery. The Maryland

offense is a common-law crime not defined by statute. See United States v.

Kirksey, 138 F.3d 120, 125 (4th Cir. 1998). Maryland court decisions have

recognized that battery can be committed in a number of ways, including “kissing

without consent, touching or tapping, jostling, and throwing water upon another.”

Id. (internal quotation marks omitted); accord Simms, 441 F.3d at 315. Thus, the

offense is not necessarily a violent felony. The circuit court, however, looked at

the charging document, which accused the defendant of pistol whipping the

victim, and upheld the district court’s determination that the defendant’s battery

conviction was for a violent felony.

         The other two cited decisions—United States v. Luque-Barahona, 272 F.

App’x 521 (7th Cir. 2008), and United States v. Robledo-Leyva, 307 F. App’x 859

(5th Cir. 2009)—concerned the same Florida battery statute at issue in Johnson.

The question in Luque-Barahona was whether the defendant’s prior Florida

conviction of battery was a conviction of a violent felony under the ACCA. The

Florida statute “provides that a person commits battery if he intentionally causes

bodily harm, or if he touches or strikes another person against the will of the

other.” 272 F. App’x at 523 (internal quotation marks omitted). The statute thus

                                         -11-
“sometimes, but not always, include[s] as an element the use, attempted use, or

threatened use of physical force against another.” Id. (internal quotation marks

omitted). The circuit court therefore looked to the account of the offense in the

arresting officer’s complaint/affidavit, which had been accepted without challenge

by defendant’s attorney. That document said that defendant had pushed a police

officer. See id. at 524. The circuit court affirmed the district court’s decision

that defendant’s prior offense had therefore been a violent felony. Similarly,

Robledo-Leyva held that the defendant’s battery conviction was for a violent

felony because the charging document accused the defendant of striking the

victim with an automobile. See 307 F. App’x at 862.

      We cannot say that the Supreme Court endorsed every component of the

circuit-court decisions in Simms and Luque-Barahona. But at the least the

Court’s reference to those decisions suggests that the modified categorical

approach can be applied if one can find language in the state statute that includes

the elements necessary for an offense to be a violent felony (or, in our case, a

crime of violence). That has been this circuit’s approach. To give just one

example, in United States v. Hill, 53 F.3d 1151 (10th Cir. 1995), we considered

whether the defendant’s prior Oklahoma conviction for burglary was a violent

felony under the ACCA. The Oklahoma burglary statute included entries into

“‘any building or any part of any building, room, booth, tent, railroad car,

automobile, truck, trailer, vessel, or other structure or erection.’” Id. at 1153

                                         -12-
(quoting Okla. Stat. Ann tit. 21, § 1435) (emphasis added). Because burglary of

an automobile does not come within the generic definition of burglary under the

ACCA, the government could not prevail under the categorical approach. But the

charging document showed that defendant had burglarized a building (which is a

species of generic burglary), so we held that defendant had been convicted of a

violent felony. See id. at 1154–55. The “statutory phrase” on which we relied

was just the word “building” in the Oklahoma law.

      In this case the Texas statutory definition of habitation includes “a

structure . . . that is adapted for the overnight accommodation of persons.” Texas

Penal Code Ann. § 30.01(1). Such a structure is undoubtedly a dwelling within

the meaning of USSG § 2L1.2 cmt. 1(B)(iii). To be sure, the definition goes on

to include “each structure appurtenant to or connected with the structure.” Texas

Penal Code § 30.01(1)(B). But even if we were to adopt Defendant’s view that

this addition to the definition includes more than dwellings, the modified

categorical approach would permit the government to show that a defendant’s

prior conviction was for the burglary of a “structure . . . that is adapted for the

overnight accommodation of persons,” and hence a crime of violence. The

government would merely be establishing the “statutory phrase . . . [that] covered

[the] prior conviction.” Nijhawan, 129 S. Ct. at 2303. It is irrelevant that here

the statutory phrase is in a definition section of the state penal code, rather than in

a section stating a criminal offense. The definition language is incorporated into

                                          -13-
the offense section. The crime would be identical if the definition had been

inserted into the offense section. See Ganzhi v. Holder, 624 F.3d 23, 30 (2d Cir.

2010) (the modified categorical approach is appropriate “where a definitional

section applicable to the statute of conviction” contains some statutory phrases

consistent with the definition of aggravated felony under the Immigration and

Nationality Act and some that are not). Hence, we conclude that the modified

categorical approach may apply to a conviction of the Texas offense of burglary

of a habitation.

      Under the modified categorical approach, the district court committed no

error because it was informed by defense counsel that the object of Defendant’s

burglary was an apartment. Counsel’s statement appears in the following

colloquy at sentencing:

      The Court: Don’t we have particularized evidence in this case that
      the—either in the charging document—was he convicted, or did he
      plead guilty of that Texas charge?

      Mr. Leedy [defense counsel]: Pled guilty, Your Honor.

      The Court: Was there evidence in his guilty plea or in the charge
      that the structure involved was an apartment?

      Mr. Leedy: Your Honor, yes, there is. However, that’s precluded
      from the Court’s analysis under Taylor. The modified categorical
      approach requires the Court to look only to the definition of the
      crime under the state statute, not to the factual basis for that crime.

R., Vol. 2 at 36–37. To be sure, the modified categorical approach allows

reference only to “the terms of the charging document, the terms of a plea

                                         -14-
agreement or transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or to some comparable

judicial record of this information.” Shepard, 544 U.S. at 26. But defense

counsel’s admission suffices under this test. See Luque-Barahona, 272 F. App’x

at 524 (relying on defense counsel’s admission to establish that prior offense was

violent felony). Surely the document itself need not be produced in court if

defense counsel stipulates to its contents. Courts could not function properly if

concessions by counsel cannot be relied upon.

      Although Defendant argues on appeal that the admission was ambiguous,

we disagree. He suggests that defense counsel was referring to ordinary evidence

(such as a victim’s statement), which cannot be used under the modified

categorical approach. But the district court specifically inquired about “evidence

in [Defendant’s] guilty plea or in the charge.” “[E]vidence in [the] guilty plea”

could only refer to an admission by Defendant during his plea colloquy (what

other evidence is there “in” a guilty plea?); and “evidence . . . in the charge”

could only be an allegation in the charging document. Both an admission by the

defendant in pleading guilty and (what amounts to the same thing) an allegation

in the charging document to which the defendant pleaded guilty can be relied on

under the modified categorical approach. See Shepard, 544 U.S. at 26. At the

least, defense counsel should have alerted the court to a different meaning of his




                                         -15-
concession if he was referring to something besides an admission by Defendant or

an allegation in the charging document.

      Defendant also suggests that because the Texas definition of habitation

includes a “structure appurtenant to or connected with” a habitation, his counsel’s

use of the term apartment could have referred to such a structure, rather than the

apartment itself. Clever. But not convincing. We are confident that no one in

the courtroom so understood defense counsel.

      Finally, Defendant argues on appeal that he should not be bound by the

concession of his attorney because the concession was wrong. He seeks to

supplement the record on appeal with a copy of the charging document (to show

that it does not mention an apartment) and an affidavit that there are no

stenographic notes of the Texas plea colloquy. But we are not inclined to accept

this argument. Defendant has not directed our attention to any case in which we

have reversed a judgment because the district court incorrectly relied on an

inaccurate statement by the appellant’s trial counsel, and we see no reason to

break that new ground. Such a ruling would create opportunities for mischief that

we could not countenance. We therefore deny the motion to supplement.

      Thus, we hold that the district court committed no error in calculating

Defendant’s offense level. 1

      1
      We also note that even if the district court could not consider defense
counsel’s concession in determining Defendant’s offense level, it could be proper
                                                                        (continued...)

                                          -16-
       B.        Fast-Track Program

       It is not clear whether the district court considered disparities arising out of

fast-track programs. Near the conclusion of the hearing it said that “[e]ven

though the Court is disregarding the disparity of the Fast Track, it can’t ignore the

fact that it’s there.” R., Vol. 2 at 66. We will, however, assume on appeal the

accuracy of Defendant’s contention that the court refused to consider this

disparity. Nevertheless, there was no error.

       Our recent decision in Lopez-Macias, 661 F.3d at 491, held that district

courts can consider fast-track sentencing disparities but that the district court

need not do so in the absence of “a minimum showing that a defendant charged

with the same crime in a fast-track district would qualify for fast-track

treatment,” id. at 494. We found no need to decide the extent of a defendant’s

burden because the defendant in that case did not make any showing at all. See

id. at 494–95. Here, too, Defendant has made no such showing. Accordingly, he

is not entitled to relief.




       1
           (...continued)
to consider such evidence in deciding whether to vary upward from the guidelines
range once that range was calculated correctly. A judge could reasonably decide
that to avoid “unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6),
the specifics of the offense should be considered so that the sentence would not
depend upon the fortuity of the details in the language of a statute that the
defendant had previously violated.


                                         -17-
III.   CONCLUSION

       We AFFIRM the district court’s sentencing, and DENY the appeal.




                                     -18-
