     Case: 13-51210      Document: 00512979408         Page: 1    Date Filed: 03/24/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-51210                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                 March 24, 2015
                                                                           Lyle W. Cayce
              Plaintiff – Appellee,                                             Clerk

v.

GERARDO CARRANZA–RAUDALES,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-610


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this appeal, Gerardo Carranza–Raudales challenges his 45-month
sentence, arguing that the district court miscalculated the Guidelines range
when it applied a 16-level crime-of-violence enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(ii). Because he cannot demonstrate plain error, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-51210

                                              I.
      Carranza–Raudales           pleaded     guilty     to    illegal    reentry      following
deportation.      His presentence report (PSR) included a 16-level crime-of-
violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The enhancement
was based upon Carranza–Raudales’s prior Michigan conviction for first-
degree home invasion under MICH. COMP. LAWS ANN. § 750.110a(2). With the
crime-of-violence enhancement, the PSR calculated his Guidelines range at
41–51 months.
      Carranza–Raudales filed no objections to the PSR, and at sentencing he
specifically acknowledged that he did not contest the enhancement. 1 The
district court found the enhancement applicable and sentenced Carranza–
Raudales within the calculated Guidelines range to 45 months of
imprisonment. Carranza–Raudales appealed, challenging the district court’s
application of the crime-of-violence enhancement.
                                              II.
      As      Carranza–Raudales        concedes,       his    failure    to   object    to   the
enhancement before the district court results in plain-error review. See United
States v. Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). “Plain error
review requires four determinations: whether there was error at all; whether
it was plain or obvious; whether the defendant has been substantially harmed
by the error; and whether this court should exercise its discretion to correct the


      1   The exchange occurred as follows:

      THE COURT: The defendant was convicted of a very serious crime, a home
      invasion, a first-degree home invasion. And, given the law, it’s well settled
      that a conviction for first-degree home invasion is, where this took place, a
      crime of violence of state law. So the 16-level enhancement does in fact apply.
      And, in fact, actually, I don’t think you contest that; do you?

      DEFENSE COUNSEL: No, Your Honor.
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                                 No. 13-51210

error in order to prevent a manifest miscarriage of justice.” Id. For Carranza–
Raudales to prevail, all four prongs must be satisfied. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
                                      III.
      Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides a 16-
level enhancement if the defendant has a prior conviction for a “crime of
violence.” The commentary to U.S.S.G. § 2L1.2 defines a “crime of violence”
as, among other things, “burglary of a dwelling” or “any other offense . . . that
has as an element the use, attempted use, or threatened use of physical force
against the person of another.”     Id. § 2L1.2 cmt. n. 1(B)(iii).   On appeal,
Carranza–Raudales asserts that the district court plainly erred when it
applied the crime-of-violence enhancement because the Michigan statute
under which he was convicted is broader than the enumerated offense of
burglary of a dwelling and because it does not have as an element the use,
attempted use, or threatened use of physical force against another person. In
response, the government does not contend that Carranza–Raudales’s prior
conviction falls within the residual clause of § 2L1.2. Rather, the government
argues that the prior conviction constitutes the enumerated offense of burglary
of a dwelling.
      We interpret “burglary of a dwelling” according to its “generic,
contemporary meaning . . ., employing a common sense approach.” United
States v. Ortega–Gonzaga, 490 F.3d 393, 394 (5th Cir. 2007) (internal quotation
marks omitted). In particular, we have adopted the definition of burglary that
the Supreme Court rendered when construing 18 U.S.C. § 924(e): “‘an unlawful
or unprivileged entry into, or remaining in, a building or other structure, with
the intent to commit a crime.’” Id. (quoting Taylor v. United States, 495 U.S.
575, 598 (1990)). As we have explained, the intent element cannot be satisfied

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merely by the commission of a crime at some point during the offense; rather,
the requisite element is the “specific intent to commit a crime at the time of
entry.” United States v. Castaneda, 740 F.3d 169, 173 (5th Cir. 2013) (emphasis
added).
      In general, when classifying a prior conviction for sentence-enhancement
purposes, we employ a “categorical approach,” with an analysis “grounded in
the elements of the statute of conviction rather than a defendant’s specific
conduct.” United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir.) (en banc),
cert. denied, 134 S. Ct. 512 (2013). However, “if the statute of conviction
contains a series of disjunctive elements,” we apply a “modified categorical
approach” to determine the particular portion of the statute under which the
defendant was convicted. United States v. Gonzales–Terrazas, 529 F.3d 293,
297–98 (5th Cir. 2008) (internal quotation marks omitted). In doing so, we look
to those judicial records that the Supreme Court approved in Shepard v. United
States, 544 U.S. 13, 26 (2005).
      The state-court judgment indicates that Carranza–Raudales was
convicted of “Home Invasion 1st Degree” under MICH. COMP. LAWS ANN. §
750.110a(2). This statute provides:

      A person who breaks and enters a dwelling with intent to commit
      a felony, larceny, or assault in the dwelling, a person who enters a
      dwelling without permission with intent to commit a felony,
      larceny, or assault in the dwelling, or a person who breaks and
      enters a dwelling or enters a dwelling without permission and, at
      any time while he or she is entering, present in, or exiting the
      dwelling, commits a felony, larceny, or assault is guilty of home
      invasion in the first degree if at any time while the person is
      entering, present in, or exiting the dwelling either of the following
      circumstances exists: (a) The person is armed with a dangerous
      weapon. (b) Another person is lawfully present in the dwelling.
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                                       No. 13-51210



MICH. COMP. LAWS ANN. § 750.110a(2). Because the statute is divisible, we
apply the modified categorical approach. The charging document reveals that
Carranza–Raudales was charged with and convicted of breaking and entering,
without permission, a dwelling while another person was lawfully present, and
committing a larceny while entering, being present in, or exiting the dwelling.
       At first blush, Carranza–Raudales’s home-invasion conviction does not
appear to be a generic burglary because the portion of the statute under which
he was convicted does not explicitly contain an intent element. In this respect,
the statute is similar to the one that we confronted in Castaneda. 740 F.3d at
172. However, as the government observes, the Michigan courts have arguably
read an intent element into the statute. See People v. Washington, No. 310969,
2013 WL 2319476, at *10 (Mich. Ct. App. May 28, 2013) (holding that breaking
and entering without permission “is a necessarily lesser-included offense of
first-degree home invasion” and explaining that “‘[t]he two crimes are
distinguished by the intent to commit a felony, larceny, or assault, once in the
dwelling’”) (quoting People v. Silver, 646 N.W.2d 150, 153 (Mich. 2002)). 2 This



       2  Carranza–Raudales notes that Silver construed a predecessor version of §
750.110a(2), one that plainly required intent and lacked the alternative of committing a crime
while entering, present in, or exiting the dwelling. Silver, 646 N.W.2d at 153. The
government had previously relied on Silver in its brief, but as Carranza–Raudales
emphasized at oral argument, the government filed a retraction letter apologizing for the
oversight and disclaiming reliance on Silver. What Carranza–Raudales fails to appreciate,
however, is that later, but still before oral argument, the government notified the court that
it may look to Washington, which relied on Silver to construe the new, amended statute.
Washington, 2013 WL 2319476, at *10. At oral argument, the government even took the
position that in light of Washington, its letter disclaiming reliance on Silver was incorrect.
Indeed, Washington—by treating Silver as authoritative on the interpretation of the current
statute—instructs that Silver is still good law, and thus Washington arguably read an intent
element into Carranza–Raudales’s statute of conviction. We cannot disregard Washington’s
interpretation. “[T]he construction that a state court gives a state statute is not a matter
subject to our review . . . .” New York v. Ferber, 458 U.S. 747, 767 (1982).
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was not the case in Castaneda, where a prior decision of our court had already
held that the defendant’s statute of conviction did not constitute a generic
burglary because it lacked an intent element, and we did not discuss any state
court decisions that might have read such an element into the statute.
Castaneda, 740 F.3d at 173–74 & n.22. In addition, the Sixth Circuit has
repeatedly held that convictions under § 750.110a qualify as crimes of
violence. 3 See United States v. Gibbs, 626 F.3d 344, 353 (6th Cir. 2010) (holding
that a Michigan conviction for second-degree home invasion “is the equivalent
of the enumerated offense of burglary of a dwelling and therefore constitutes a
‘crime of violence’”); United States v. Howard, 327 F. App’x 573, 575 (6th Cir.
2009) (same); United States v. Garcia–Serrano, 107 F. App’x 495, 496 (6th Cir.
2004) (holding that Michigan’s first-degree home invasion is a crime of violence
and noting that it “includes all of the elements of burglary of a dwelling”). 4


       3 Although the Sixth Circuit applies Taylor to determine whether a prior conviction
constitutes a generic burglary, we note that the Sixth Circuit’s standard is slightly different
from the one that we employ. Whereas we interpret Taylor’s definition of generic burglary
to require intent to commit a crime at the time of entry, the Sixth Circuit cases dealing with
Michigan’s home-invasion statute do not mention this temporal limitation; furthermore, the
Sixth Circuit has used the ordinary categorical approach rather than the modified categorical
approach that we apply to these types of divisible statutes. Compare Castaneda, 740 F.3d at
173–74 (applying the modified categorical approach and interpreting Taylor to require intent
to commit a crime at the moment of entry) with United States v. Gibbs, 626 F.3d 344, 353
(6th Cir. 2010), and United States v. Howard, 327 F. App’x 573, 575–76 (6th Cir. 2009)
(applying the Taylor standard to determine that Michigan second-degree home invasion
qualifies as a crime of violence but using the ordinary categorical approach and failing to
specify that generic burglary requires intent to commit a crime at the time of entry).

       4 In his post-argument Rule 28(j) letter, Carranza–Raudales contends that, under our
recent decision in United States v. Sarabia–Martinez, No. 14-50064, 2015 WL 736009 (5th
Cir. Feb. 20, 2015), “error in applying a sentencing enhancement can be plain, even when
this Court has not addressed the particular state statute at issue and another circuit
encompassing that state has affirmed application of the enhancement on the basis of a
conviction under that statute.” In Sarabia–Martinez, the government relied, in part, on
Eleventh Circuit precedent to support a “drug trafficking offense” enhancement under
U.S.S.G. § 2L1.2. We rejected the government’s argument and found plain error because the
Eleventh Circuit cases applied a “bulk theory of intent” approach that “we have already
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                                       No. 13-51210

       We need not resolve here today whether Carranza–Raudales’s home-
invasion conviction in fact qualifies as a crime of violence. Assuming arguendo
that it does not, any error was far from plain. This court has recognized the
tricky task that crime-of-violence determinations can represent, holding that
an error is not plain where the case law construing a criminal statute is unclear
or conflicting. See United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). In
addition, “[w]e ordinarily do not find plain error when we have not previously
addressed an issue.         Even where the argument requires only extending
authoritative precedent, the failure of the district court to do so cannot be plain
error.” United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (internal
quotation marks and citation omitted). Because the Michigan courts have
arguably read an intent element into the statute, the Sixth Circuit has
repeatedly held that convictions under § 750.110a qualify as crimes of violence,
and our court has not previously addressed the issue, Carranza–Raudales
cannot demonstrate that the district court committed plain error.
                                             IV.
       The plain-error standard establishes a high hurdle, and Carranza–
Raudales cannot overcome it. For the foregoing reasons, the judgment of the
district court is AFFIRMED.




rejected.” Sarabia–Martinez, 2015 WL 736009 at *2. Because the Eleventh Circuit cases
upon which the government relied applied a standard that our court had rejected, those cases
could not prevent a showing of plain error. Id. In addition, the error was plain because the
state statute at issue was identical in all essential respects to the one that we had analyzed
when we rejected the Eleventh Circuit’s approach. Id. at **1–2.
        Here, unlike in Sarabia–Martinez, the relevant authorities of our sister court do not
apply a standard that we have flatly rejected, and the state statute—as arguably interpreted
by the Michigan courts—is not identical in all essential respects to one that we have
previously confronted. Thus, Sarabia–Martinez is inapposite, and the Sixth Circuit cases
upon which the government relies are relevant to whether Carranza–Raudales can
demonstrate plain error.
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