                          REVISED October 30, 2012

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

                                                                         FILED
                                                                      August 14, 2012
                                       No. 11-40863
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

RUBEN BENITO JOSLIN

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2-11-CR-181-1


Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Ruben Benito Joslin pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). He was found eligible for sentencing
enhancement under 18 U.S.C. § 924(e), the Armed Career Criminal Act
(“ACCA”), and sentenced to the statutory minimum of fifteen years of
imprisonment and five years of supervised release. On appeal, Joslin alleges that


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 11-40863

the district court erred in finding three predicate convictions of “violent felonies”
necessary to satisfy § 924(e). We AFFIRM.
                        FACTS AND PROCEEDINGS
      The facts are largely undisputed. On April 25, 2011, Joslin pleaded guilty
to one count of being a felon in possession of a firearm. At sentencing, the
district court, concerned that it had not properly admonished Joslin about the
possible statutory enhancements under the ACCA, vacated the plea and ordered
a new hearing. Joslin again pleaded guilty to the offense. In the Pre-sentence
Investigation Report (PSR), the probation officer determined that Joslin
qualified for sentence enhancement due to his prior criminal history. After a
three-level reduction for acceptance of responsibility, the district court reduced
his offense level to a 30, which produced a guidelines range of 135 to 168 months
of imprisonment. However, the PSR recommended that the court apply the
fifteen year minimum sentence required under the ACCA, because Joslin
previously had been convicted of four “violent felonies” including: (1) a 1992
conviction for burglary of a habitation with intent to commit theft; (2) a 1997
conviction for burglary of a building; (3) a 1997 Texas deferred adjudication for
burglary of a building; and (4) a 2000 conviction for aggravated assault.
      Joslin filed objections to the PSR contending that he did not qualify for the
ACCA enhancement because two of the predicate offenses, namely, the 1992 and
2000 convictions, were not “violent felonies” under the statute. In regard to the
1992 conviction for burglary of a habitation, Joslin objected on the grounds that
the Texas Penal Code § 30.02 (1991) did not conform to the “generic” or
“contemporary” definition necessary to satisfy the ACCA. He argued that,
because Texas law includes a unique definition of ownership based on a greater
right of possession, the offense included broader activity than was intended for
ACCA enhancement. Referring to the 2000 conviction for aggravated assault,
Joslin contested that the offense was not a predicate “violent felony” under the


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ACCA because it lacked the following requisite elements: (i) the use of physical
force against another person; (ii) a mens rea greater than recklessness; or (iii)
conduct that presented a serious risk of physical injury. Joslin did not object to
the application of the ACCA based on either the 1997 conviction for burglary of
a building or the 1997 deferred adjudication for burglary of a building.
      The government conceded Joslin’s argument regarding the 2000
conviction, and the court overruled Joslin’s objection that the 1992 conviction did
not serve as a predicate offense for purposes of § 924(e). As a result, the district
court determined that Joslin did have the three necessary predicate offenses and
applied the ACCA declaring, “[t]he court adopts the presentence report as
written. . . . The Defendant is sentenced to a hundred and eighty months. . . .
that is a minimum mandatory sentence about which the court has no discretion
to sentence less than a hundred and eighty months.”
                                 DISCUSSION
      The ACCA provides that any person who violates § 922(g) and has three
prior convictions “for a violent felony or serious drug offense, or both, committed
on occasions different from one another, such person shall be fined under this
title and imprisoned not less than fifteen years. . .” 18 U.S.C. § 924(e). Under
§ 924(e), a “violent felony” is defined as any crime punishable by a term of
imprisonment 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 (ii) is
burglary, arson, or extortion, involves the use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B).
      Joslin contends that the district court reversibly erred in determining that
he qualified for the sentence enhancement provision found in § 924(e). He
argues that only the August 7, 1997 conviction for burglary of a building was a
“violent felony” under the ACCA, and, therefore, the imposition of the fifteen

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year minimum sentence was erroneous. First, Joslin asserts that the 1992
conviction for burglary of a habitation did not fit the generic, contemporary
definition of burglary, as required for application of the ACCA, because the
Texas Penal Code encompasses possible burglary convictions for those persons
with lesser possessory interests “in which few, if any, other states would find
him guilty of the crime of burglary.” Second, Joslin contends that the court
erroneously included his 1997 Texas deferred adjudication for burglary of a
building offense as a “conviction” of a “violent felony” because, under Texas law,
he was never adjudicated guilty.
      In response, the government asserted that the 1992 conviction properly
qualified as a “violent felony” because the Texas burglary provision, TEX. PENAL
CODE § 30.02, falls under the generic definition of “unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a
crime.” See Taylor v. United States, 495 U.S. 575, 599 (1990). The government
further contends that, when considering the 1997 deferred adjudication, federal
law applies in the determination of a “conviction,” and the court properly
included the offense in the ACCA enhancement application.
      In order for this court to overrule the district court decision, Joslin must
prove that two of the contested offenses from the PSR are not “violent felonies”
under the ACCA. We hold that the district court correctly found three predicate
“violent felonies” when applying the ACCA sentence enhancement and affirm.


A. 1992 Conviction for Burglary of a Habitation
      We review the interpretation of a sentence enhancement provision de
novo. United States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005). The
Supreme Court defined “generic” burglary, for purposes of the ACCA, as an
“unlawful or unprivileged entry into, or remaining in, a building or structure
with intent to commit a crime.” Taylor, 495 U.S. at 599. When determining if a

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guilty plea to a burglary offense coincides with the generic definition, this court
is permitted to look only to “the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.” Shepard v. United States, 544
U.S. 13, 16 (2005). Moreover, if the plea refers to a non-generic statute, the
court is limited to the terms of the charging document, plea agreement, or
transcript of the colloquy in which the factual basis for the plea was confirmed
by the defendant to determine if that particular offense amounts to a “violent
felony” for ACCA enhancement. Id. at 26.
      On October 19, 1992, Joslin pleaded guilty to a burglary of a habitation in
Texas state court. The Texas Penal Code provision in effect at that time
provided that a person commits burglary if, without the consent of the owner, he:
      (1) enters a habitation, or building (or any portion of a building) not
      then open to the public, with the intent to commit a felony or theft;
      or (2) remains concealed, with intent to commit a felony or theft, in
      a building or habitation; or (3) enters a building or habitation and
      commits or attempts to commit a felony or theft.
TEX. PENAL CODE § 30.02 (1991).1 Under the code, an “owner” is a person who
has “title to the property, possession of the property, whether lawful or not, or
a greater right to possession of the property than the actor.” § 1.07(a)(24) (1991).2
The charging document stated that Joslin “[w]ith intent to commit a theft,
entered a habitation owned by Pedro Villanueva, a person having greater right
to possession than Defendant and hereafter styled the Complainant, without
effective consent of the Complainant, namely, without consent of any kind.” The
Harris County District Court then sentenced him to five years of imprisonment.



      1
           § 30.02 was amended in 1999 to include assault, but otherwise the statute has not
changed.
      2
           § 1.07(a)(24) is now codified as § 1.07(a)(35)

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      The Fifth Circuit has consistently held that an offense under § 30.02(a)(1)
coincides with the “generic” burglary definition necessary to prove a “violent
felony” for the purposes of the ACCA. United States v. Eddins, 451 F. App’x 395,
396 (5th Cir. 2011); United States v. Constante, 544 F.3d 584, 585-86 (5th Cir.
2008) (citing United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992)). However,
this court does not recognize § 30.02(a)(3) as a generic burglary because it lacks
the element of intent. Constante, 544 F.3d at 586. Because Joslin’s plea fails to
detail the specific subsection of the offense, the court may look to the language
in the plea agreement to determine which subsection is applicable. See Eddins,
451 F. App’x at 396.
      The charging document’s language “with intent to commit theft, entered
a habitation. . .” clearly tracks that found in § 30.02(a)(1) (1991) stating a person
commits an offense of burglary if “without the effective consent of the owner, he
enters a habitation. . . with the intent to commit a felony or theft,” which this
court has repeatedly held is generic burglary for purposes of ACCA
enhancement. Id.
      We must note, however, that United States v. Silva and its progeny do not
consider offenders with lesser possessory interests. Nevertheless, Joslin has
failed to provide on appeal any evidence that Congress intended to exclude
Texas’ unique definition of ownership when applying the ACCA. In Taylor v.
United States, the Supreme Court found that Congress listed burglary, along
with arson, in its enumerated offenses because of the crime’s “inherent potential
for harm to persons.” 495 U.S. at 588. The Court found that Congress intended
to prohibit crimes that often result in the possibility of violence between the
offender and an occupant. Id.
      Merely maintaining an inferior possessory interest in a habitation does not
extinguish the potential violence that may result when a person enters a
habitation with intent to commit theft. Therefore, we find that Joslin’s 1992
conviction is the type of generic crime contemplated by Congress, and, based on



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this court’s consistent precedent since Silva, the district court properly included
the offense when applying the ACCA enhancement.


B. 1997 Texas Deferred Adjudication
       We review issues first raised on appeal for plain error. United States v.
Gore, 636 F.3d 728, 742 (5th Cir. 2011), cert. denied, 132 S. Ct. 1633 (2012).
Joslin did not object to the use of the August 7, 1997 Texas deferred adjudication
for burglary of a building when the district court applied the statutory
enhancement. Accordingly, this court reviews the issue for plain error, and,
under this standard, we may reverse if the district court’s error was clear or
obvious, and affected the defendant’s substantial rights. Id. If Joslin can prove
such error, this court has the discretion to correct it, but only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).
      Under the statute, a conviction shall be determined “in accordance with
the law of the jurisdiction in which the proceedings were held.” 18 U.S.C.
§ 921(a)(20). As a result, Texas law applies when defining a conviction for
sentence enhancement under the ACCA. Under Texas law, a conviction always
requires an adjudication of guilt. McNew v. State, 608 S.W.2d 166, 172 (Tex.
Crim. App. 1978); see also, Webb v. City of Dallas, 211 S.W.3d 808, 816 (Tex.
App.–Dallas 2006, pet. denied) (stating discharge of a deferred adjudication
usually constitutes a dismissal without conviction)). Furthermore, the Texas
Code of Criminal Procedure states that upon expiration of the deferred
adjudication probation, “if the judge has not proceeded to adjudication of guilt,
the judge shall dismiss the proceedings against the defendant and discharge
him.” TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c). However, 42.12 § 5(c) also
provides, “upon conviction of a subsequent offense, the fact that the defendant
had previously received community supervision with a deferred adjudication of
guilt shall be admissible before the court or jury to be considered on the issue of
penalty.” Art. 42.12 § 5(c)(1).

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       Joslin argues that the district court plainly erred when it included his
1997 deferred adjudication for burglary of a building because he was never
adjudicated guilty. He asserts that, under McNew’s requirement of adjudication
of guilt, the offense does not satisfy a “conviction” for purposes of ACCA
enhancement. Therefore, Joslin contends, the district court plainly erred when
including the offense as a “violent felony.”
       We have previously recognized, when considering a different enhancement
provision, that a Texas deferred adjudication following a guilty plea counts as
a conviction under federal law regardless of whether there is an adjudication of
guilt. United States v. Washington, 480 F.3d 309, 318 (5th Cir. 2007) (citing
United States v. Joshua, 305 F.3d 352 (5th Cir. 2002) (per curiam)) (noting that
“a deferred adjudication is a conviction for purposes of [U.S.S.G. §] 4B1.1”); but
see United States v. Mondragon-Santiago, 564 F.3d 357, 368 n.9 (5th Cir. 2009)
(noting, in a case interpreting 8 U.S.C. § 1101, that “[u]nder Texas law, a
deferred adjudication is neither a conviction nor a sentence.”). In United States
v. Daniels, this court affirmed the district court’s conclusion that a Texas
deferred adjudication sentence may be applied as a prior conviction under state
and federal law during subsequent sentencing proceedings, regardless of
dismissal of the state indictment. 588 F.3d 835 (5th Cir. 2009) (holding that a
guilty plea for which the defendant received a deferred adjudication counted as
a conviction under federal law for purposes of U.S.S.G. § 4B1.1) . Therefore, we
cannot find that the district court plainly erred under Art. 42.12 § 5(c)(1) or the
holding in Daniels when it included Joslin’s deferred adjudication as a prior
conviction.3



       3
          Our opinion is not intended to serve as a final determination that a deferred
adjudication following a guilty plea counts as a conviction under Texas law for purposes of the
Armed Career Criminal Act. Instead, our holding is much narrower. We conclude only that
the district court did not plainly err, against a background of both federal and Texas law, in
holding that Joslin's deferred adjudication counted as a conviction for purposes of subsequent
federal sentencing, under Texas law.

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                               CONCLUSION
      Because Joslin has failed to prove that the district court improperly
included either the 1992 or 1997 offense when applying the ACCA sentence
enhancement, there were three predicate offenses, and the district court did not
err in sentencing Joslin to fifteen years of imprisonment under 18 U.S.C.
§ 924(e), we AFFIRM the judgment of the district court.




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