     Case: 16-40007      Document: 00514525012         Page: 1    Date Filed: 06/22/2018




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

                                                                               FILED
                                      No. 16-40007                         June 22, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


              Plaintiff - Appellee

v.

CARLOS JUAREZ-MARTINEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-660-1


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Carlos Juarez-Martinez pleaded guilty to being
unlawfully in the United States following a prior deportation, in violation of
8 U.S.C. § 1326.      The presentence report (PSR) recommended a 16-level
sentencing enhancement based on Juarez-Martinez’s 2011 Georgia conviction
for burglary, deeming it a crime of violence. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 16-40007


(2015).   At the sentencing hearing, the district court imposed a within-
Guidelines sentence of 70 months of imprisonment.
      Juarez-Martinez appeals, arguing that the district court improperly
enhanced his sentence based on this burglary conviction, an argument he
concedes he did not raise below. In light of this forfeiture, we review this issue
for plain error only. See United States v. Hernandez, 690 F.3d 613, 620 (5th
Cir. 2012). To establish plain error, Juarez-Martinez must show: (1) an error
or defect, (2) that is clear or obvious, and (3) affected his substantial rights.
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If these three
elements are satisfied, this court has the discretion to remedy the error “if the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting Puckett, 556 U.S. at 135).
      Under the applicable 2015 version of the Guidelines, a defendant is
subject to a sentencing enhancement under § 2L1.2(b)(1)(A)(ii) if he was
previously deported after a felony conviction for a “crime of violence” that
receives criminal history points.    As relevant here, this definition of “crime of
violence” includes certain enumerated offenses, including “burglary of a
dwelling.” See § 2L1.2(b)(1)(A)(ii) cmt. n.1. We have defined “burglary of a
dwelling” as “generic” burglary, i.e., the “unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent to commit a crime.”
United States v. Murillo-Lopez, 444 F.3d 337, 341, 344–45 (5th Cir. 2006)
(citing Taylor v. United States, 495 U.S. 575, 598 (1990)).
      Juarez-Martinez contends that the Georgia statute governing his 2011
burglary conviction is broader than this generic definition of burglary and
therefore is not a crime of violence for purposes of § 2L1.2. Though we have
previously held otherwise, see United States v. Martinez-Garcia, 625 F.3d 196


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(5th Cir. 2010), our intervening en banc decision in United States v. Herrold,
883 F.3d 517, 536 (5th Cir. 2018), makes it clear that our previous holding that
the Georgia burglary statute is a crime of violence does not control our decision.
        The relevant Georgia statute reads: “A person commits the offense of
burglary when, without authority and with the intent to commit a felony or
theft therein, he enters or remains within the dwelling house of another.”
GA. CODE ANN. § 16-7-1 (2010).        Juarez-Martinez contends that, under
Georgia law, a jury is not required to determine whether the intent to commit
a crime arose before an unlawful entry or remaining in as opposed to after one
has already unlawfully remained in the dwelling. See, e.g., Jackson v. State,
270 Ga. 494, 496 (1999) (“intent necessary for commission of burglary need not
be formed at precise moment of entry, but can be formed while perpetrator
remains on premises” (citing Hewatt v. State, 455 S.E.2d 104, 106 (Ga. Ct. App.
1995)) (emphasis added)); Littleton v. State, 485 S.E.2d 230, 232 (Ga. Ct. App.
1997) (“[T]he jury was authorized to determine that at some point before he
entered the house or while he remained in it, [the defendant] intended to
commit aggravated assault.” (emphasis added)); see also United States v.
Bernel-Aveja, 844 F.3d 206, 235 & n.124 (5th Cir. 2016) (Owen, J., concurring)
(citing Williams v. State, 601 S.E.2d 833, 836 (Ga. Ct. App. 2004), for the
proposition that GA. CODE ANN. § 16-7-1 does not require a jury to determine
whether a defendant forms intent prior to unlawfully entering or remaining
in).     Accordingly, Juarez-Martinez argues that the Georgia statute is
indivisible as to the issue of when the defendant forms the intent to commit a
felony. See Herrold, 883 F.3d at 523 (“Under Mathis [v. United States, 136 S.
Ct. 2243 (2016)], when state law does not require jury unanimity between
statutory alternatives, the alternatives cannot be divisible.”). The Government



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does not dispute this interpretation of Georgia law. 1                   In light of the
Government’s implicit concession, we need not decide whether the cases cited
by Juarez-Martinez provide the best or only interpretation of Georgia law, but
we    do     accept     this    interpretation       for    the     purposes      of    this
appeal. See, e.g., FTC v. Nat’l Bus. Consultants, Inc., 376 F.3d 317, 320 n.6
(5th Cir. 2004); United States v. McKeever, 894 F.2d 712, 714 n.1 (5th Cir.
1990).
       This court, sitting en banc, recently affirmed that generic burglary
requires that defendants “possess the intent to commit a crime while
remaining in this narrower sense—that is, at the moment they exceed their
license in order to commit the crime.” Herrold, 883 F.3d at 532; accord Bernel-
Aveja, 844 F.3d at 213–14; United States v. Herrera-Montes, 490 F.3d 390, 392
(5th Cir. 2007). Under Juarez-Martinez’s proffered interpretation, which we
accept for purposes of this appeal, Georgia burglary is therefore broader than
generic burglary inasmuch as the jury is free to decide that intent was formed
after, rather than contemporaneously with, an unlawful entry or remaining-
in. To the extent the holding of Martinez-Garcia encompasses a contrary view,
it would be abrogated by Herrold. 2
       Moreover, while the error may not have been plain when this matter was
before the district court, “whether a legal question was settled or unsettled at



       1 The Government contends that Herrold was wrongly decided, which, of course, is
unavailing: we are bound by our en banc precedent. The Government also discusses an
Eleventh Circuit opinion holding that Georgia’s burglary statute is divisible as to its
locational element. See United States v. Gundy, 842 F.3d 1156, 1168–69 (11th Cir. 2016).
However, the Eleventh Circuit in Gundy did not consider Juarez-Martinez’s argument that
the statute is indivisible as to when one forms the intent to commit a felony. Therefore, its
holding has no bearing on our decision.
       2 We have yet to definitively decide whether, pursuant to our rule of orderliness, a

panel is bound by a prior panel’s holding if the prior panel did not consider or address a
potentially dispositive argument made before the later panel. See United States v. Castillo-

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the time of [sentencing], it is enough that an error be ‘plain’ at the time of
appellate consideration.” Henderson v. United States, 568 U.S. 266, 279 (2013)
(cleaned up). One need not carefully parse the Georgia cases discussed above
to determine that, under Herrold, the Georgia burglary statute is indivisible
as to when the intent to commit a felony is formed and broader than generic
burglary. Thus, the enhancement is plainly erroneous.
       Juarez-Martinez contends, and the Government does not dispute, that
without the enhancement for his prior Georgia burglary conviction his
Guidelines range would have been, “at most,” 30–37 months of imprisonment.
Instead, the district court imposed a sentence of 70 months of imprisonment,
at the bottom of the now plainly erroneous Guidelines range. Accordingly,
Juarez-Martinez has shown an effect on his substantial rights.                      See, e.g.,
United States v. Marroquin, 884 F.3d 298, 301 (5th Cir. 2018) (“When ‘a
defendant is sentenced under an incorrect Guidelines range,’ the error will
usually result in prejudice to the defendant.” (quoting Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345 (2016))). And this significant disparity
between the correct range and the incorrect sentence, combined with the
absence of any countervailing considerations, supports the exercise of our




Rivera, 853 F.3d 218 221 n.1 (5th Cir. 2017) (en banc) (declining to address “the proper
application of this circuit’s rule of orderliness in cases where a party made an explicit
concession before a prior panel that is dispositive in a future case”). Thus, it is not clear
whether Martinez-Garcia, which did not address the breadth or divisibility of the element at
issue here, 625 F.3d at 198–99, actually contains a holding that may conflict with Herrold.
Compare, e.g., Sykes v. Tex. Air Corp., 834 F.2d 488, 492 (5th Cir. 1987) (“The fact that [in a
prior case] no litigant made and no judge considered the fancy argument advanced in this
case does not authorize us to disregard our Court’s strong rule that we cannot overrule the
prior decision.”), with, e.g., Thomas v. Tex. Dep’t of Criminal Justice, 297 F.3d 361, 370 n.11
(5th Cir. 2002) (“Where an opinion fails to address a question squarely, we will not treat it as
binding precedent.”).

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discretion to correct the error. See Rosales-Mireles v. United States, No. 16-
9493, 2018 WL 3013806, at *4 (U.S. June 18, 2018).
      Because the district court’s sentencing error was plain, affected Juarez-
Martinez’s substantial rights, and seriously affects the fairness, integrity or
public reputation of judicial proceedings, we exercise our discretion to
REVERSE and REMAND for resentencing.




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