     Case: 15-20281      Document: 00513523395         Page: 1    Date Filed: 05/26/2016




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


                                      No. 15-20281                                   FILED
                                                                                 May 26, 2016
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                                                 Plaintiff – Appellee
v.

NORMAN MEMBRENO-DAVID,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-630-1


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Norman       Membreno-David          appeals     an     eight-level     sentencing
enhancement he received for a prior Virginia burglary conviction.                            We
VACATE and REMAND for resentencing and correction of the judgment.


                FACTUAL AND PROCEDURAL BACKGROUND
       In August 2014, Membreno illegally re-entered the United States after
having been deported subsequent to a 2002 Virginia conviction for burglary.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20281    Document: 00513523395    Page: 2     Date Filed: 05/26/2016


                                No. 15-20281

Based on these facts, Membreno pled guilty, without a written plea agreement,
to violating 8 U.S.C. § 1326(b)(2). In Membreno’s presentence report (“PSR”),
the probation officer applied an eight-level sentencing enhancement under
U.S.S.G. § 2L1.2(b)(1)(C) because Membreno’s burglary conviction was for an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). Membreno’s total offense
level was 13 and his criminal history category was V. His Guidelines range
was 30 to 37 months’ imprisonment and one to three years of supervised
release.
      Membreno objected to the enhancement for his burglary conviction
because the Virginia statute is broader than generic burglary. He also objected
to conviction under 8 U.S.C. § 1326(b)(2), rather than (b)(1), because his
Virginia conviction was not for an “aggravated felony.” The district court
overruled Membreno’s objections. The court sentenced Membreno at the top of
the Guidelines range, 37 months and three years of supervised release.
Membreno timely appealed.


                                 DISCUSSION
      We review interpretation and application of the Sentencing Guidelines
de novo. See United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007). “In
addition, this court may affirm the district court’s judgment on any basis
supported by the record.” Id. (quotation marks omitted).
      We first address whether Membreno’s prior Virginia statutory burglary
conviction was for a “burglary offense” under 8 U.S.C. § 1101(a)(43)(G) to
support the Section 2L1.2(b)(1)(C) enhancement.          We then consider the
Government’s two alternative grounds for affirmance: first, that the Virginia
conviction supports the enhancement because it was for a “crime of violence”
under 8 U.S.C. § 1101(a)(43)(F); second, that any error was harmless.

                                      2
    Case: 15-20281       Document: 00513523395      Page: 3   Date Filed: 05/26/2016


                                    No. 15-20281

   I.      Was Membreno’s Virginia conviction for a “burglary offense”?
        An eight-level enhancement applies under Section 2L1.2 if a defendant
has a previous conviction for an “aggravated felony.” U.S.S.G. § 2L1.2(b)(1)(C).
An “aggravated felony” includes “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least
one year.” See 8 U.S.C. § 1101(a)(43)(G); U.S.S.G. § 2L1.2 cmt. n.3(A). We
apply what is called the categorical approach to determine whether the
elements of Virginia statutory burglary align with the generic, contemporary
meaning of a “burglary offense” to support the sentencing enhancement. See
United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc)
(applying Taylor v. United States, 495 U.S. 575 (1990)). When a state statute
contains alternative elements to support a conviction, we apply the modified
categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2284–85
(2013). Under that approach, we look to the state court documents approved
in Shepard v. United States, 544 U.S. 13, 26 (2005), to ascertain which
alternative elements supported the conviction. See Descamps, 133 S. Ct. at
2284–85.
        Membreno was convicted under Section 18.2-91 of the Virginia Code.
That Section defines statutory burglary as “commit[ting] any of the acts
mentioned in § 18.2-90 with intent to commit larceny, or any felony other than
murder, rape, robbery or arson. . . . ” VA. CODE § 18.2-91. The referenced
Section 18.2-90 further identifies the elements of burglary:
        If any person in the nighttime enters without breaking or in the daytime
        breaks and enters or enters and conceals himself in a dwelling house or
        . . . any building permanently affixed to realty . . . or any automobile . . .
        used as a dwelling. . . with intent to commit murder, rape, robbery or
        arson . . . he shall be deemed guilty of statutory burglary.
Id. § 18.2-90.

                                           3
    Case: 15-20281      Document: 00513523395        Page: 4    Date Filed: 05/26/2016


                                    No. 15-20281

      The Virginia statute is divisible as to how the entry is accomplished –
breaking and entering during daytime or entering at nighttime without
breaking. It also is divisible as to the target of the burglary – a house, building,
or other alternatives not relevant here.           Accordingly, application of the
modified categorical approach is proper. See Descamps, 133 S. Ct. at 2284–85.
      The Shepard-approved documents in the record are Membreno’s state
court indictment, conviction and referral order, and the sentencing orders.
Membreno’s state court indictment tracks the language of the statute, alleging
that he “did break and enter in the daytime or enter in the nighttime the
business establishment known as Dr. Carwash, with the intent to commit
larceny, assault and battery or [another felony] . . . therein.” 1 Neither this
language nor the other Shepard-approved documents identifies which
alternative entry element, either breaking and entering during the daytime or
entering during the nighttime, supported Membreno’s conviction.
      Because we cannot ascertain from the state court documents which of
the alternative forms of entry supported Membreno’s conviction, we must
determine whether the least culpable act is a “burglary offense.” See Johnson
v. United States, 559 U.S. 133, 137 (2010).         We agree with Membreno that,
from the limited Virginia case law, the least culpable act necessary to support
a conviction under the Virginia statute is entering a business during the
nighttime without breaking. See Clark v. Commonwealth, 472 S.E.2d 663 (Va.
Ct. App. 1996), aff’d on reh’g en banc, 481 S.E.2d 495 (Va. Ct. App. 1997). In
Clark, the defendant argued that he could not be convicted of statutory
burglary under Virginia Code § 18.2-90 because he had entered a store while
it was open for business in the evening. Id. at 664. The Virginia court held


      1  The state court indictment charges “Hondo Lopez” with the offense. Membreno does
not challenge that he was the individual convicted under the alias “Hondo Lopez.”
                                           4
    Case: 15-20281     Document: 00513523395      Page: 5    Date Filed: 05/26/2016


                                  No. 15-20281

that the statute only required proof of entry into a building, not the common
law element of breaking-in. Id. at 664–65.
      We agree with Membreno that the least culpable act under the Virginia
statute is broader than the generic, contemporary meaning of burglary. Entry
into a business during the nighttime does not require unprivileged presence or
entry, which the Supreme Court and our court have recognized as a distinct
element of generic burglary. The Supreme Court has characterized generic
burglary as “contain[ing] at least the following elements: an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.” See Taylor, 495 U.S. at 598. We have held a
California statute without an unprivileged presence or entry element did not
constitute “burglary of a dwelling” to support an enhancement for a “crime of
violence” under Section 2L1.2(b)(1)(A). United States v. Ortega-Gonzaga, 490
F.3d 393 (5th Cir. 2007).
      The Government claims that the Virginia statute requires both
unprivileged entry and intent to commit a crime because the intent to commit
a crime makes an entry per se unprivileged. The Government focuses on the
following language from Clark: “[I]t would be an impeachment of [] common
sense . . . to say that . . . a thief who enters the store with intent to steal does
so with the owner’s consent and upon his invitation.” 472 S.E.2d at 677. We
read Taylor as characterizing the unprivileged entry and the intent to commit
a crime as distinct elements in generic burglary. In Taylor, the Supreme Court
specifically noted burglary statutes that did not contain an unprivileged entry
element as examples of statutes that define burglary more broadly than the
generic meaning. See 495 U.S. at 599.
      Our previous opinion in Ortega-Gonzaga also rejects the Government’s
view. There, we held that a previous conviction under a California statute that

                                         5
    Case: 15-20281    Document: 00513523395    Page: 6   Date Filed: 05/26/2016


                                No. 15-20281

did not require unprivileged entry would not support an enhancement under
Section 2L1.2 for “burglary of a dwelling.”      490 F.3d at 395–96.       The
Government argued, as it also does here, that “any entry with the intent to
commit a crime must be unlawful or unprivileged.” Id. at 395 (quotation marks
omitted). We disagreed, explaining that Taylor and the Model Penal Code
identify the unprivileged entry and the intent to commit a crime as separate
elements. Id. We offered examples where an entry is lawful and so no burglary
occurs, despite intent to commit a crime: “[A] cable repairman may enter a
house with intent to rape, but because he enters lawfully and with privilege,
there is no ‘burglary.’ Likewise, a shoplifter who lawfully enters a store with
the intent to steal may later commit theft, but not burglary.” Id.         In a
companion case, we again held that unprivileged entry and intent to commit a
crime are distinct elements of generic burglary. See United States v. Herrera-
Montes, 490 F.3d 390 (5th Cir. 2007).
      The Government alternatively argues that Membreno admitted at re-
arraignment to “breaking and entering,” which allows us to narrow which
entry element supported his conviction. At re-arraignment, the Government
recited the factual predicate for the plea, including Membreno’s 2002 Virginia
conviction for “the offense of breaking and entering with intent to commit a
felony.” Membreno stated that the facts the Government asserted were true.
Membreno’s counsel corrected the Government’s misstatement regarding how
long Membreno served for that conviction but did not contest any other part of
the factual predicate. The Government contends this exchange constitutes an
admission by Membreno that he was convicted of breaking and entering.
      A few previous panels of our court have used facts admitted by a
defendant or his counsel to determine whether a prior conviction qualified for
an enhancement under Section 2L1.2. See United States v. Chavez-Hernandez,

                                        6
     Case: 15-20281       Document: 00513523395         Page: 7     Date Filed: 05/26/2016


                                       No. 15-20281

671 F.3d 494, 500–01 (5th Cir. 2012); United States v. Mendoza-Sanchez, 456
F.3d 479, 483 (5th Cir. 2006). 2          In Mendoza-Sanchez, we determined the
defendant’s prior conviction qualified as “burglary of a dwelling” under Section
2L1.2 because the defendant had admitted at rearraignment during a colloquy
with the court that he had entered a house, rather than another kind of
structure or building, without permission. 456 F.3d at 482–83. In Chavez-
Hernandez, on plain error review, we affirmed an enhancement under Section
2L1.2 because, during sentencing proceedings, defense counsel stated the age
of the minor victim the defendant had sexually abused. 671 F.3d at 500–01.
       Membreno did not engage in a colloquy with the court in which he
admitted specific facts like the defendant in Mendoza-Sanchez.                       Unlike
Chavez-Hernandez, neither Membreno nor his counsel affirmatively stated any
information about the underlying Virginia conviction. Instead, read in context,
Membreno’s response may have acknowledged no more than the existence of
this Virginia conviction, which the Government was referring to in shorthand
as “breaking and entering.” Membreno’s statement cannot be used to narrow
which entry element supported his conviction.
       Because Virginia statutory burglary is broader than generic burglary by
failing to require unprivileged presence or entry, Membreno should not have
received the eight-level enhancement under Section 2L1.2(b)(1)(C). We turn
to the alternative grounds for affirmance.




       2 Because we distinguish these cases, we note but need not address whether reliance
on admissions fits within the Supreme Court’s instructions to refer only to Shepard-approved
documents when applying the modified categorical approach and to consider elements of the
offense of conviction, not the facts underlying the offense. See Shepard v. United States, 544
U.S. 13 (2005); Taylor v. United States, 495 U.S. 575, 600–02 (1990).
                                              7
    Case: 15-20281      Document: 00513523395     Page: 8   Date Filed: 05/26/2016


                                   No. 15-20281

   II.     Was the Virginia conviction for a “crime of violence”?
         The Government contends, in the alternative, that we should affirm
because Membreno’s statutory burglary conviction was for a “crime of violence”
under 8 U.S.C. § 1101(a)(43)(F), and that would justify the enhancement.
Membreno disagrees, and alternatively, he argues 18 U.S.C. § 16(b) is
unconstitutionally vague.
         An “aggravated felony” includes a “crime of violence” under 18 U.S.C.
§ 16. See 8 U.S.C. § 1101(a)(43)(F). Section 16(b) states that a “crime of
violence” is “any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.” 18 U.S.C. § 16(b). As
explained above, because the modified categorical approach does not clarify
which entry element supported Membreno’s conviction, we must assume it
rested on the least culpable element.          See Johnson, 559 U.S. at 137.
Accordingly, we determine whether entry into a business during the evening
with intent to commit an enumerated crime in Virginia Code §§ 18.2-90 or 18.2-
91 is a “crime of violence.”
         We start with caselaw holding that first-degree burglary in California
was a “crime of violence” even though it did not require unlawful entry. See
United States v. Echeverria-Gomez, 627 F.3d 971, 976 (5th Cir. 2010). In that
case, though, the particular California statute required entry into an
“inhabited dwelling house.” Id. We reasoned that entry into a home creates a
risk of force between the burglar and the occupants: “[B]y its nature, then,
residential burglary presents a substantial risk of a face-to-face confrontation
between the burglar and an occupant of the residence and a substantial
corresponding risk that the burglar will use physical force.” Id. at 977. The
panel recognized that, even though the California statute could allow

                                         8
    Case: 15-20281    Document: 00513523395      Page: 9   Date Filed: 05/26/2016


                                 No. 15-20281

conviction when there was privileged entry, “in the ordinary case” of
residential burglary there is a substantial risk of physical force. Id. at 978.
      In another case, we held that previous Texas convictions for burglary of
a nonresidential building and an automobile each qualified as a conviction for
a “crime of violence.” See United States v. Rodriguez-Guzman, 56 F.3d 18, 20
(5th Cir. 1995), overruled on other grounds, as recognized in Ibarra-Leyva v.
Johnson, 623 F. App’x 163, 167 n.20 (5th Cir. 2015). The panel reasoned that
burglaries of a nonresidential building and an automobile involved a
substantial risk that physical force would be used against property. 56 F.3d at
20–21. Importantly, the Texas statutes relevant in that case both require
unprivileged entry. See TEX. PENAL CODE §§ 30.02, 30.04.
      Neither Echeverria-Gomez nor Rodriguez-Guzman clearly resolves the
question here. Membreno’s indictment reveals he was convicted for statutory
burglary of a business rather than a residence as in Echeverria-Gomez. In
Rodriguez-Guzman, the Texas statutes require unprivileged entry as a
separate element, which the Virginia statute does not.
      We agree with Membreno that the Virginia statute does not support a
conviction for a “crime of violence” under 18 U.S.C. § 16(b). A person entering
a business during regular evening business hours with intent to commit a
crime does not create a “substantial risk” of physical force against a person or
property in the ordinary case. We so conclude because during regular business
hours, a business desires and thus invites members of the public to enter its
premises. The enhancement cannot be upheld on this ground.
      As a result of our conclusion that the least culpable act under the
Virginia statute is not a “crime of violence” under Section 16(b), we do not
address the constitutionality of that Section under Johnson v. United States,
135 S. Ct. 2551 (2015).

                                        9
   Case: 15-20281     Document: 00513523395      Page: 10   Date Filed: 05/26/2016


                                  No. 15-20281

   III.   Was any error harmless?
      The Government contends any error in applying the enhancement was
harmless. To show harmless error, the Government must “point to evidence in
the record that will convince us that the district court had a particular sentence
in mind and would have imposed it, notwithstanding the error.” United States
v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010). There is no indication from
the record that the district court would have chosen the exact same 37-month
sentence if not for the error in the Guidelines calculation. If the district court
had not applied the “aggravated felony” enhancement for the Virginia
statutory burglary conviction, Membreno would have received only a four-level
“any other felony” enhancement. See U.S.S.G. § 2L1.2(b)(1)(D). His Guidelines
range would have then been 21 to 27 months, rather than 30 to 37 months.
The district court’s comments at sentencing do not make it possible to
determine with “requisite certainty” that it would have imposed the 37-month
sentence even if the Guidelines range would have been 21 to 27 months. See
Ibarra-Luna, 628 F.3d at 719.


   IV.    Should the judgment be corrected?
      As he did in the district court, Membreno requests the judgment be
corrected to reflect conviction under 8 U.S.C. § 1326(b)(1), rather than 8 U.S.C.
§ 1326(b)(2). The PSR relied on the burglary conviction as the “aggravated
felony” to support a violation of 8 U.S.C. § 1326(b)(2).         We agree with
Membreno that because the Virginia burglary conviction was not for an
“aggravated felony,” he should be convicted under 8 U.S.C. § 1326(b)(1). As
previous unpublished opinions have done, we instruct the district court on
remand to correct the record to reflect conviction and sentencing under 8
U.S.C. § 1326(b)(1). See United States v. Cabrera, 478 F. App’x 204, 209 (5th

                                       10
   Case: 15-20281    Document: 00513523395     Page: 11   Date Filed: 05/26/2016


                                No. 15-20281

Cir. 2012); United States v. Segura-Sanchez, 452 F. App’x 471, 474–75 (5th Cir.
2011).
      We VACATE the sentence and REMAND for resentencing and correction
of the judgment to reflect conviction under 8 U.S.C. §1326(b)(1).




                                      11
