     Case: 11-20097     Document: 00511917460         Page: 1     Date Filed: 07/11/2012




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

                                                                            FILED
                                                                           July 11, 2012

                                       No. 11-20097                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ELI AVILES PANIAGUA, also known as Eli Paniagua Aviles, also known as
Eli P. Aviles, also known as Eli Aviles-Paniagua,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:10-CR-00488


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Eli Aviles Paniagua (Aviles) pled guilty to being illegally present in the
United States following deportation subsequent to a felony conviction, 8 U.S.C.
§ 1326(a), (b)(1). On appeal, Aviles challenges the district court’s sentence
enhancement under U.S.S.G. § 2L1.2(b)(1)(C), based on Aviles’s previous
conviction of an aggravated felony. We AFFIRM. The Government’s Motion to
Supplement the Appellate Record is DENIED AS MOOT.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20097

                                        I
     Aviles was indicted on one count of being illegally present in the United
States following deportation subsequent to a felony conviction.          At his
rearraignment, Aviles admitted under oath that he previously had been
convicted of engaging in organized criminal activity involving burglary of a
motor vehicle, a felony offense.    See TEX. PENAL CODE § 71.02(a)(1). The
exchange between the court and Aviles was as follows:

     THE COURT:              So you were convicted of the offense in
                             Hays County, Texas. What town is the
                             county seat of Hays County where the
                             courthouse is located. Do you remember?

     THE DEFENDANT:          San Marcos.

     THE COURT:              You were convicted of engaging in
                             organized criminal activity, burglary of a
                             vehicle there?

     THE DEFENDANT:          Yes.

     THE COURT:              And that was in 2004. And then you had a
                             probated sentence that was revoked, and
                             you were put in prison for two years in
                             June of 2005?

     THE DEFENDANT:          Yes.

     THE COURT:              And then you were deported to Mexico in
                             July of 2007?

     THE DEFENDANT:          Yes.

     THE COURT:              And then you reentered the United States
                             sometime after that?

     THE DEFENDANT:          In 2008.


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      Based on Aviles’s prior conviction, the PSR recommended that his base
offense level of eight be enhanced by eight levels under U.S.S.G. § 2L1.2(b)(1)(C).
Aviles objected to the recommended enhancement. He argued that his prior
conviction did not meet the definition of “aggravated felony” under §
2L1.2(b)(1)(C) because the underlying offense of burglary of a motor vehicle was
a misdemeanor. He also contended that the gravamen of the offense is not the
misdemeanor burglary but the unlawful conspiracy or combination, which, under
the statute, has many prohibited objectives, not all of which are violent. Finally,
Aviles argued that burglary of a motor vehicle is not within the generic
definition of “burglary” encompassed by the Immigration and Nationality Act
(INA) and the Sentencing Guidelines.
      The district court overruled his objections and adopted the PSR,
concluding that Aviles’s conviction was an aggravated felony because it fell
within the definition of a “crime of violence” under Section 1101(a)(43)(F) of the
INA. After a three-level reduction for acceptance of responsibility, Aviles’s total
offense level was thirteen. Because he also had several previous Texas burglary
convictions, his criminal history category was VI, resulting in an advisory range
of 33 to 41 months’ imprisonment. The district court sentenced him to 41
months in prison, followed by a three-year term of supervised release. Aviles
filed a timely notice of appeal.
                                        II
      We review a challenge to the application of the sentencing guidelines de
novo, accepting the district court’s factual findings unless clearly erroneous.
United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995).
“Defendants-appellants’ sentences must be affirmed unless they were imposed
in violation of law or were based upon an erroneous application of the
Sentencing Guidelines.” United States v. Chapa-Garza, 243 F.3d 921, 924 (5th
Cir. 2001). We may affirm on any grounds supported by the record, even if not

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relied on by the district court. United States v. Gonzalez, 592 F.3d 675, 681 (5th
Cir. 2009).
      This court generally uses a categorical approach to determine whether an
offense qualifies as an aggravated felony under § 2L1.2. Chapa-Garza, 243 F.3d
at 924. Under the categorical approach, the court “looks to the elements of a
prior offense, rather than to the facts underlying the conviction.” United States
v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005) (citing Taylor v. United States,
495 U.S. 575, 602 (1990)). However, in a “narrow range of cases,” where “the
statute of conviction contains a series of disjunctive elements,” the district court
may employ a “modified categorical approach” and go beyond the elements of the
offense to determine whether the defendant was convicted of an aggravated
felony. United States v. Gonzalez-Terrazas, 529 F.3d 293, 297 (5th Cir. 2008).
In these cases, we “may consider, in addition to the language of the statute, the
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant has assented.”
Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006) (internal quotation
marks omitted).     If the documents we consider do not establish that the
petitioner was “necessarily convicted of an aggravated felony,” then we must find
that the government has not met its burden. Id.
      This case falls into that “narrow range of cases” where the modified
categorical approach is appropriate, because the statute of conviction, Texas
Penal Code § 71.02(a)(1), contains a number of disjunctive elements:
      (a) A person [engages in organized criminal activity] if, with the
      intent to establish, maintain, or participate in a combination or in
      the profits of a combination or as a member of a criminal street
      gang, the person commits or conspires to commit one or more of the
      following: (1) . . . burglary of a motor vehicle . . . .

Id. For example, a defendant who possessed the necessary intent may be
convicted under § 71.02(a)(1) for committing burglary of a motor vehicle or for

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                                  No. 11-20097

merely conspiring to do so. See, e.g., Renfro v. State, 827 S.W.2d 532, 534 (Tex.
App.–Houston [1st Dist.] 1992, pet. ref’d) (“[T]o be guilty of the offense of
organized criminal activity, a defendant must commit or conspire to commit one
of the enumerated crimes, and do so with the specific intent of participating in
a group of at least [three] persons.”).
      However, the list of documents that, under the modified categorical
approach, normally illuminate a defendant’s prior conviction is of little help in
this case: Aviles pled guilty without a written plea agreement; the
rearraignment transcript, included in relevant portion above, makes only bare
reference to the offense; and the indictment is not in the record before this court.
Thus, with no facts in the record underlying Aviles’s conviction except for the
district court’s indication that the conviction involved burglary of a motor
vehicle, we are left to decide whether Aviles was “necessarily convicted of an
aggravated felony” based solely on the elements of the prior offense. See Larin-
Ulloa, 462 F.3d at 464. In other words, we must determine whether the “least
culpable act” that violates the statute constitutes an aggravated felony. See
United States v. Reyes-Mendoza, 665 F.3d 165, 166 (5th Cir. 2011).
                                          III
      Section 2L1.2(b)(1)(C) of the Sentencing Guidelines provide that “[i]f the
defendant previously was deported, or unlawfully remained in the United States,
after . . . a conviction for an aggravated felony,” his offense level should be
increased by eight levels. U.S.S.G. § 2L1.2(b)(1)(C). Comment 3(A) states that
“[f]or purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given
that term in 8 U.S.C. 1101(a)(43).” § 2L1.2 cmt. n.3(A). Section 1101(a)(43)
includes twenty-one different subsections under which an offense may qualify
as an aggravated felony. See § 1101(a)(43)(A)-(U). The district court concluded
that Aviles’s prior conviction was an aggravated felony under subsection (F),
which provides that an aggravated felony includes “a crime of violence (as

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defined in section 16 of Title 18, but not including a purely political offense) for
which the term of imprisonment [is] at least one year[.]” § 1101(a)(43)(F).
Section 16 of Title 18 defines a “crime of violence” as:
      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or
      (b) 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.
      The statute of prior conviction, § 71.02(a)(1), clearly does not have “as an
element the use, attempted use, or threatened use of physical force” and does not
qualify as a crime of violence under § 16(a). Aviles notes that, in 1994, the Texas
legislature reclassified burglary of a motor vehicle, TEX. PENAL CODE § 30.04,
from a felony to a Class A misdemeanor. See Rodriguez-Guzman, 56 F.3d at 21.
Aviles argues this removes his conviction from § 16(b)’s definition as well.
However, §71.02(a)(1), not § 30.04, is at issue in this case, and engaging in
organized criminal activity involving burglary of a motor vehicle under §
71.02(a)(1), as Aviles concedes, is still a felony. See TEX. PENAL CODE § 71.02(b).
      The question remains whether engaging in organized criminal activity
involving burglary of a motor vehicle under § 71.02(a)(1) carries the risk
described in § 16(b). Where such an offense is based on the actual commission
of burglary of a motor vehicle, it clearly does. In Rodriguez-Guzman, we
concluded that a defendant’s pre-1994 conviction for burglary of a motor vehicle
was a crime of violence under § 16(b), reasoning as follows:
      By its very terms, subsection (b) requires only a substantial risk
      that physical force may be used during the commission of the crime.
      A substantial risk that an event may occur does not mean that it
      must occur in every instance; rather, a substantial risk requires only
      a strong probability that the event, in this case the application of
      physical force during the commission of the crime, will occur.

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      ...
      As the facts surrounding Rodriguez’s burglary convictions amply
      demonstrate, the burglary of a nonresidential building or of a
      vehicle often involves the application of destructive physical force to
      the property of another.

56 F.3d at 20.
      Although, in this case, we do not have in the record the facts surrounding
Aviles’s prior conviction, and although Rodriguez-Guzman’s conclusion has been
undermined by Texas’s reclassification of burglary of a vehicle, our statement
that “burglary of a . . . vehicle often involves the application of destructive
physical force to the property of another” remains true. Moreover, a defendant’s
possession of the intent described in § 71.02(a) does not lessen that risk. In fact,
as the Government argues, the risk of physical force being used against the
property of another may even be increased where a burglar also possesses “the
intent to establish, maintain, or participate in a combination or in the profits of
a combination or as a member of a criminal street gang.” § 71.02(a).
      As we noted above, however, a defendant may also be convicted under §
71.02(a)(1) for “conspir[ing] to commit . . . burglary of a motor vehicle.” Aviles
argues that a conspiracy offense does not carry the same risk as the underlying
offense, and that engaging in a conspiracy, the “least culpable act” under the
statute of conviction, is not a crime of violence. We disagree. In United States
v. Gore, 636 F.3d 728 (5th Cir. 2011), we recently held that the Texas offense of
conspiracy to commit aggravated robbery is a “violent felony” under the Armed
Career Criminal Act (ACCA). The definition of a “violent felony” under the
ACCA is similar to the “crime of violence” definition under § 16:
      [T]he term “violent felony” means any crime punishable by
      imprisonment for a term exceeding one year . . . that --
      (i) has as an element the use, attempted use, or threatened use of
      physical force against the person of another; or



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        (ii) is burglary, arson, or extortion, involves use of explosives, or
        otherwise involves conduct that presents a serious potential risk of
        physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). We reasoned in Gore that, because Texas law “requires
‘an overt act in pursuance of the agreement’ as an element of a conspiracy
conviction”, the defendant could not have violated the conspiracy statute at issue
without committing a “violent felony.” See Gore, 636 F.3d at 736.
        The same rationale applies in this case. The Texas Penal Code provides
that:
        (a) A person commits criminal conspiracy if, with intent that a
        felony be committed:
        (1) he agrees with one or more persons that they or one or more of
        them engage in conduct that would constitute the offense; and
        (2) he or one or more of them performs an overt act in pursuance of
        the agreement.

TEX. PENAL CODE § 15.02(a). This definition mirrors the Model Penal Code’s
definition of “conspiracy,” which also requires “an overt act in pursuance of [the]
conspiracy.” MODEL PENAL CODE § 5.03(5). While Aviles’s insinuation that the
agreement element of a conspiracy will rarely involve the use of physical force
may have some merit, a conspiracy in Texas is not complete until a conspirator
commits an “overt act.” This overt act need not be the first act in a burglary, but
there is a substantial risk that it will be.        Accordingly, an overt act in
furtherance of a conspiracy to commit burglary of a motor vehicle “by its nature,
involves a substantial risk that physical force against the . . . property of another
may be used in the course of committing the offense.” § 16(b). Furthermore, the
risk associated with the commission of an “overt act” in furtherance of the
conspiracy, like that associated with the burglary itself, does not decrease
because a defendant enters into the conspiracy with the intent to engage in
organized criminal activity described in § 71.02(a).


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        Finally, it does not matter in this case that some of the prohibited
objectives in § 71.02(a)(1), like forgery, may not be crimes of violence. As
discussed above, the modified categorical approach permits us to examine the
record to determine which elements of the statute formed the basis for
conviction. While the record does not indicate which elements of § 71.02(a)
formed the basis for conviction, the rearraignment transcript establishes that
the conviction was based on burglary of a motor vehicle under § 71.02(a)(1).
                                       IV
        In sum, an offense under § 71.02(a) for engaging in organized criminal
activity involving burglary of a motor vehicle requires either commission of a
burglary, or conspiracy to commit burglary, and in both cases the offense “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.” §
16(b). Section 71.02(a)’s requirement that the defendant also possess “the intent
to establish, maintain, or participate in a combination or in the profits of a
combination or as a member of a criminal street gang” does not diminish this
risk.
        Accordingly, we AFFIRM the judgment of the district court.          The
Government’s Motion to Supplement the Appellate Record is DENIED AS
MOOT.




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