     Case: 13-20251      Document: 00512722789         Page: 1    Date Filed: 08/05/2014




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

                                                                                 FILED
                                      No. 13-20251                          August 5, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee
v.

JUAN FLORES VILLAFANA,

                                                 Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-0676-1



Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
           Juan Flores Villafana pled guilty without a plea agreement to illegal
reentry into the United States following deportation. Pursuant to §
2L1.2(b)(1)(C) of the United States Sentencing Guidelines, the district court
assessed an eight-level enhancement to Villafana’s base offense level due to
Villafana’s having returned following an aggravated felony conviction—a 2003
guilty plea conviction in Texas for forgery of a commercial instrument.
Villafana acknowledged at sentencing that his conviction involved the use of a
false social security card in order to work. Villafana did not object to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20251
enhancement at sentencing, but instead sought a downward variance on the
basis that his offense level “overstated the seriousness of his prior conviction.”
Now, Villafana argues that the Texas statute under which he was convicted
for possession of a forged instrument 1 does not constitute an “aggravated
felony” because his offense of conviction is broader than common law forgery.
For the reasons stated below, we affirm.
         The government contends that Villafana has waived appellate review of
the district court’s enhancement of his sentence, and that, at the very least, his
appeal is subject to plain error review. We need not address this issue because,
for reasons that follow, we find no error, plain or otherwise.
         Under the Sentencing Guidelines, a defendant convicted of illegal
reentry into the United States is subject to an eight-level sentencing
enhancement if he was previously removed after committing an “aggravated
felony.” 2 The term “aggravated felony” includes any “offense . . . relating to              .
. . forgery . . . for which the term of imprisonment is at least one year.” 3
Because the Guidelines do not further define “forgery” we apply a “common
sense approach,” and define the enumerated crime by its “generic
contemporary meaning.” 4 One source this court has recognized for the generic
contemporary meaning of an enumerated offense is the Model Penal Code. 5




1   TEX. PENAL CODE § 32.21.
2    U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(C).
3   8 U.S.C. § 1101(a)(43)(R).
4 United States v. Martinez-Valdez, 419 F.App’x 523, 524 (5th Cir. 2011) (citing United States
v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir. 2006)).
5 Martinez-Valdez, 419 F.App’x at 524. See also Torres-Diaz, 438 F.3d at 536 (looking to
Model Penal Code as the primary source of generic contemporary meaning of “aggravated
assault” when the Sentencing Guidelines did not provide a definition).


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                                         No. 13-20251
          Courts employ a “categorical approach” to determine whether the state
offense is comparable to an offense listed in 8 U.S.C. § 1101(a)(43). 6 “Under
this approach [courts] look ‘not to the facts of the particular prior case,’ but
instead to whether ‘the state statute defining the crime of conviction’
categorically fits within the ‘generic’ definition of a corresponding aggravated
felony.” 7 “If the statute at issue is divisible, and at least one of the offenses
included in the statute is not an aggravated felony [and another section
constitutes an aggravated felony], the court is to apply a ‘modified categorical
approach.” 8 Under the modified categorical approach, we are permitted to
conduct a limited inquiry into the charging documents to determine which
statutory variant of the crime was committed. 9 We can therefore review the
charging document, written plea agreement, and state court judgment to
determine whether the district court correctly determined that Villafana’s
prior conviction for misdemeanor forgery qualified as an aggravated felony for
purposes of a sentence enhancement. 10
          Villafana agreed to plead guilty to misdemeanor forgery after the state
initially charged him with the felony of Tampering with a Governmental
Record. To identify this reduced charge, the state prosecutor made several



6Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (citing Nijhawan v. Holder, 129 S.Ct.
2294 (2009); Gonzales v. Duenas–Alvarez, 127 S.Ct. 815 (2007)).
7    Moncrieffe, 133 S. Ct. at 1684 (quoting Duenas-Alvarez, 549 U.S. at 186).
8United States v. Ramirez, 731 F.3d 351, 354 (5th Cir. 2013) (citing Larin-Ulloa v. Gonzales,
462 F.3d 456, 464 (5th Cir. 2006)).
9    Ramirez, 731 F.3d at 754 (citing Larin-Ulloa, 462 F.3d at 464).
10 Shepard v. United States, 544 U.S. 13, 16, 26 (2005); United States v. Esparza-Perez, 681
F.3d 228, 230 (5th Cir. 2012). We note that, although classified as a misdemeanor under
Texas law, Villafana’s prior conviction can still constitute an aggravated felony for purposes
of § 1101(a)(43). See United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002).


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handwritten changes to the initial Felony Bill of Information. Prior to the
changes, the Bill of Information stated, in relevant part:
         . . . [O]n or about April 18, 2003, [Villafana] did then and there
         unlawfully, with intent that it be used unlawfully, POSSESS A
         GOVERNMENTAL RECORD, namely a CERTIFICATE, TO WIT,
         A SOCIAL SECURITY CARD AND WITH THE INTENT TO
         DEFRAUD AND HARM ANOTHER.
Pursuant to the agreement between Villafana and the state, the prosecutor
struck through certain portions of the Bill of Information so that it stated:
         . . . [O]n or about April 18, 2003, [Villafana] did then and there
         unlawfully, with intent that it be used unlawfully, POSSESS A
         GOVERNMENTAL RECORD, namely a CERTIFICATE, TO WIT,
         A SOCIAL SECURITY CARD AND WITH THE INTENT TO
         DEFRAUD AND HARM ANOTHER.
The prosecutor also added a notation to the end of the document that the “State
moves to reduce to the class ‘A’ misdemeanor of forgery.” The Judgment states
that Villafana was convicted of “forgery—comm instrument,” a class A
misdemeanor under § 32.21 of the Texas Penal Code, and sentenced to one year
in prison. 11
         Viewing the Information and Judgment together, it is clear that
Villafana was convicted under subparts (a)(1)(C) and (b) of § 32.21 for (1)
possession a forged writing, (2) with intent to utter it, (3) in order to defraud
or harm another. 12 We are charged to determine whether these elements fit


11   See TEX. PENAL CODE § 32.21.
12   The text of § 32.21 provides, in relevant part:
         (a) For purposes of this section:
                 (1) “Forge” means:
                        (A) to alter, make, complete, execute, or authenticate any
                        writing so that it purports:
                               (i) to be the act of another who did not authorize that act;
                               (ii) to have been executed at a time or place or in a
                               numbered sequence other than was in fact the case; or

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                                       No. 13-20251
within the generic meaning of forgery, 13 or fall under § 1101(a)(43)(R)’s
definition of an offense “relating to” forgery. 14
         Under the Model Penal Code,
         A person is guilty of forgery if, with purpose to defraud or injure
         anyone, or with knowledge that he is facilitating a fraud or injury
         to be perpetrated by anyone, the actor:
                (a) alters any writing of another without his authority; or
                (b) makes, completes, executes, authenticates, issues or
                transfers any writing so that it purports to be the act of
                another who did not authorize the that act, or to have been
                executed at a time or place or in a numbered sequence other
                than was in fact the case, or to be a copy of an original when
                no such original existed; or
                (c) utters any writing which he knows to be forged in a
                manner specified in paragraphs (a) or (b). 15



                                (iii) to be a copy of an original when no such original
                                existed;
                        (B) to issue, transfer, register the transfer of, pass, publish, or
                        otherwise utter a writing that is forged within the meaning of
                        Paragraph (A); or
                        (C) to possess a writing that is forged within the meaning of
                        Paragraph (A) with intent to utter it in a manner specified in
                        Paragraph (B).
                (2) “Writing” includes:
                        (A) printing or any other method of recording information;
                        (B) money, coins, tokens, stamps, seals, credit cards, badges, and
                        trademarks; and
                        (C) symbols of value, right, privilege, or identification.
         (b) A person commits an offense if he forges a writing with intent to defraud or
         harm another.
         (c) Except as provided in Subsections (d) and (e) an offense under this section is a
         Class A misdemeanor.
(emphasis added).
13   See Ramirez, 731 F.3d at 354.
14   See 8 U.S.C. § 1101(a)(43)(R).
15   MODEL PENAL CODE § 224.1(1).


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                                       No. 13-20251
Villafana’s forgery conviction was based on his possession of a forged
instrument. The Model Penal Code’s definition of forgery does not include
possessory offenses, but rather requires an affirmative act of making or
altering a writing. Therefore, the elements of Villafana’s conviction do not
match the generic definition of forgery contained in the Model Penal Code and
previously endorsed by this court. 16
       But, our inquiry does not end here. The state court records clearly
establish that Villafana was charged and convicted of a crime relating to the
Model Penal Code’s definition of forgery. Possession of an altered document
with intent to defraud and harm another is clearly related to the generic crime
of forgery. Therefore, under the plain language of § 1101(a)(43)(R), Villafana’s
prior conviction qualifies as an “aggravated felony.” We stated as much in an
unpublished decision, 17 and other circuits considering this question have held
that possession of a forged instrument with intent to negotiate it or otherwise
cause harm relates to forgery. 18 Thus, the district court committed no error,




16 See Martinez-Valdez, 419 F.App’x at 525. See also United States v. Ramirez, 557 F.3d 200,
205 (2009) (“’Our primary source for the generic contemporary meaning of aggravated assault
is the Model Penal Code.”(quoting Torres-Diaz, 438 F.3d at 536)).
17 See Martinez-Valdez, 419 F.App’x at 514 n.1 (observing that defendant did not argue, nor
could he, that the Wyoming statute criminalizing possession of forged documents failed the
“relating to” prong of the definition of aggravated felony set forth in § 1101(a)(43)(R)).
18 See, e.g., United States v. Martinez-Gonzalez, 663 F.3d 1305, 1308 (11th Cir. 2011) (“We
hold that the violation of a state law proscribing the possession of a forged document with
the intent to defraud is a crime related to forgery under § 1101(a)(43)(R).”); United States v.
Chavarria-Brito, 526 F.3d 1184, 1186 (8th Cir. 2008) (“convictions for the possession of a false
document with the intent to perpetrate a fraud” constitutes an aggravated felony under §
2L1.2(b)(1)(C) of the Sentencing Guidelines); Richards v. Ashcroft, 400 F.3d 125, 129–30 (2d
Cir. 2005) (“Even if possession of a forged instrument with intent to defraud, deceive or injure
is not ‘forgery’ as defined at common law, it is unarguably an offense ‘relating to forgery’
within the broad construction we have given that term.” (citations omitted)).


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plain or otherwise, in assessing the eight-level enhancement for Villafana’s
prior conviction for an “aggravated felony.” 19
       AFFIRMED.




19 Villafana also argues that his forgery conviction was void and could not be used to enhance
his sentence because the state trial court lacked jurisdiction over the misdemeanor offense.
This court has held that, “absent an allegation that the defendant was denied counsel in the
prior proceeding, a district court sentencing a defendant may not entertain a collateral attack
on a prior conviction used to enhance the sentence unless such an attack is otherwise
recognized by law.” United States v. Longstreet, 603 F.3d 273, 277 (5th Cir. 2010).
Accordingly, Villafana is barred from challenging the validity of his 2003 forgery conviction,
and we reject this argument.


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