     Case: 13-40737      Document: 00512652932         Page: 1    Date Filed: 06/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40737                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             June 4, 2014
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee
v.

BIBIAN GARCIA-MONTEJO,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-142-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Bibian Garcia-Montejo pleaded guilty to violating 8 U.S.C. §§ 1326(a)
and (b) for unlawfully being in the United States subsequent to deportation
following an aggravated felony conviction.            He appeals his sentence of 41
months of imprisonment, contending that the district court erred in concluding
that his prior Florida burglary conviction warranted a 16-level enhancement




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40737
under § 2L1.2 of the United States Sentencing Guidelines. We vacate and
remand for resentencing.
                                                I
       Bibian Garcia-Montejo pleaded guilty to violating 8 U.S.C. §§ 1326(a)
and (b) for being unlawfully present in the United States after his deportation
following an aggravated felony conviction.               The Presentence Investigation
Report (PSR) calculated a total offense level of 21 and a criminal history
category of II. The total offense level included a 16-level enhancement under
§ 2L1.2(b)(1)(A) of the United States Sentencing Guidelines based on his 2009
Florida burglary conviction. This resulted in an advisory Guidelines range of
41 to 51 months of imprisonment. Garcia-Montejo filed no objections to the
recommendations in or conclusions of the PSR. The district court sentenced
Garcia-Montejo to 41 months imprisonment and one year of supervised release.
Garcia-Montejo now appeals his sentence contending that the district court
erred by applying the 16-level crime of violence enhancement.
                                               II
       “We review de novo whether a prior conviction constitutes a crime of
violence within the meaning of the Guidelines.” 1 The Guidelines define a crime
of violence as (1) any offense in a list of enumerated offenses that includes
“burglary of a dwelling,” or (2) any other offense that “has as an element the
use, attempted use, or threatened use of physical force against the person of
another.” 2 The Government’s only contention is that Garcia-Montejo’s Florida
burglary conviction qualifies as a crime of violence because it constitutes the
enumerated offense of “burglary of a dwelling.”



       1   United States v. Sanchez, 667 F.3d 555, 560 (5th Cir. 2012).
       2U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); see also United States v. Esparza-Perez, 681 F.3d
228, 229 (5th Cir. 2012).
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                                        No. 13-40737
       Garcia-Montejo did not object to the crime of violence enhancement at
the district court. Because he failed to object, we review his challenge for plain
error. Plain error exists if “(1) there is an error, (2) the error is plain, . . . (3)
the error affect[s] substantial rights,” and (4) “the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” 3 The plainness
of an error is judged from the time of appeal, not the time of trial. 4
                                              III
       We employ a categorical approach in determining whether an
enumerated offense qualifies as a crime of violence under § 2L1.2. 5 “[W]e
examine the elements of the offense, rather than the facts underlying the
conviction or the defendant’s actual conduct, to determine whether an offense
meets the definition of a [crime of violence].” 6 However, if the statute of
conviction encompasses multiple, distinct offenses, at least one of which would
not qualify as a crime of violence, we apply a modified categorical approach. 7
Under the modified categorical approach, we may examine certain additional
documents in the convicting court’s record to determine whether a guilty plea
conviction fell under a particular subsection of a divisible statute. The state
court documents that we may consider include the charging documents,
written plea agreement, transcript of the plea colloquy, and any explicit factual
findings or conclusions of law to which the defendant assented. 8 Once we have


       3Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013) (alterations in original)
(internal quotation marks omitted); see also United States v. Escalante-Reyes, 689 F.3d 415,
419 (5th Cir. 2012) (en banc).
       4   Henderson, 133 S. Ct. at 1129.
       5   United States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007).
       6   United States v. Ortiz-Gomez, 562 F.3d 683, 684 (5th Cir. 2009).
       7United States v. Gore, 636 F.3d 728, 732 & n.17 (5th Cir. 2011) (citing Johnson v.
United States, 559 U.S. 133, 144-45 (2010)).
       8   Johnson, 559 U.S. at 144.
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                                        No. 13-40737
pared down the statute based on the information in the approved documents,
we presume that the conviction “rested upon nothing more than the least of
the acts criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.” 9 To determine whether an offense
qualifies as an enumerated offense we use a “common sense approach” that
looks to the “ordinary, contemporary, [and] common meaning.” 10 If “the state
definition for an offense is broader than the generic definition, a conviction
under that state’s law cannot serve as a predicate for the crime of violence
enhancement.” 11
       Applying the plain error standard we must first determine whether there
was an error. Garcia-Montejo was convicted of burglary in Florida.                        The
criminal information to which he pleaded guilty charged that he “did
knowingly enter or remain in a dwelling, the property of [the victim], with
intent to commit an offense therein, and in the course of committing the
burglary made an assault or battery upon [the victim], contrary to Florida
Statute 810.02(1) and 2(a).” The relevant portions of the Florida burglary
statute in force when he committed this offense defined burglary as follows,
       1. Entering a dwelling, a structure, or a conveyance with the
          intent to commit an offense therein, unless the premises are at
          the time open to the public or the defendant is licensed or
          invited to enter; or

       2. Notwithstanding a licensed or invited entry, remaining in a
          dwelling, structure, or conveyance:


       9Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (brackets and quotation marks
omitted).
       10United States v. Sanchez, 667 F.3d 555, 560-61 (5th Cir. 2012); see also United States
v. Rodriguez, 711 F.3d 541, 556-58 (5th Cir. 2013) (en banc) (explaining our plain-meaning
approach to deriving the “generic, contemporary meaning” of non-common-law-offense
categories).
       11   Sanchez, 667 F.3d at 561 (brackets omitted).
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                a. Surreptitiously, with the intent to commit an offense
                   therein[.] 12

      This is not the first time this court has been asked to determine whether
an offense under this statute categorically qualifies as a crime of violence. In
United States v. Gomez-Guerra, 13 we held that a conviction under § 810.02 did
not qualify as the enumerated offense of burglary of a dwelling because the
statute criminalized a broader range of conduct than the generic, common
sense definition of burglary of a dwelling. 14             Namely, Florida law defines
“dwelling” to include not just the actual building but also the curtilage
surrounding the building:
      (2) “Dwelling” means a building or conveyance of any kind, . . .
      whether such building or conveyance is temporary or permanent,
      . . . which has a roof over it and is designed to be occupied by people
      lodging therein at night, together with the curtilage thereof. 15

Because dwelling is defined to include the curtilage, and the “ordinary,
contemporary, common meaning of burglary of a dwelling does not extend to
the grounds around the dwelling,” 16 we held in Gomez-Guerra that the least
culpable act that satisfied the statutory count of conviction was categorically
not a crime of violence.
      The Government in this case argues that Gomez-Guerra is not
controlling because the facts show that the Garcia-Montejo did not enter
curtilage, but actually entered a residence. The Government asserts that



      12   FLA. STAT. ANN. § 810.02 (West 2009).
      13   485 F.3d 301 (5th Cir. 2007).
      14   Gomez-Guerra, 485 F.3d at 303-04.
      15   FLA. STAT. ANN. § 810.011(2) (West 2009) (emphasis added).
      16   Gomez-Guerra, 485 F.3d at 304.
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                                            No. 13-40737
under United States v. Castillo-Morales, 17 if the documents we may evaluate
under the modified categorical approach demonstrate that the defendant
entered the residence rather than the curtilage, then the conviction does
constitute a crime of violence under the enumerated offense clause. In Castillo-
Morales, we again evaluated whether a conviction under the Florida burglary
statute constituted a crime of violence as a “burglary of a dwelling.” We held
in Castillo-Morales that it did, because the defendant’s plea agreement
stipulated to facts laid out in the charging affidavit, which specified that the
defendant had in fact burglarized the inside of a residence rather than the
curtilage. 18 “We hold that when a defendant stipulates that ‘a factual basis’
for his plea is present in ‘court documents,’ courts may use any uncontradicted
facts in those documents to establish an element of a prior conviction.” 19
       Here, however, we do not have any “court documents containing the
factual basis for the conviction.” 20 Under the modified categorical approach,
when there is a guilty plea conviction, our review is “limited to examining 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.” 21 Of this limited class of documents, we have only the
charging instrument and the statutory definition entered into the record before
us. Neither of these documents shed light on the precise elements of Garcia-
Montejo’s conviction. The charging document is silent on whether Garcia-
Montejo entered the building or merely the curtilage. It simply uses the term


       17   507 F.3d 873 (5th Cir. 2007).
       18   Castillo-Morales, 507 F.3d at 875-76.
       19   Id. at 876.
       20   See id. at 877.
       21Shepard v. United States, 544 U.S. 13, 16 (2005); see also Johnson v. United States,
559 U.S. 133, 144 (2010).
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                                        No. 13-40737
“dwelling,” which as discussed above, includes both. 22 We do not have the
Florida sentencing transcript. We do not have any findings of fact by the
Florida judge. We do not have a copy of the plea agreement. We do not have
a copy of the charging affidavit.
       The Government responds that the factual predicate for the conviction
is discussed in the PSR. It is true that the PSR states that, “[a]ccording to the
charging affidavit . . . the defendant removed the screen and two (2) panes of
glass from a window of the victim’s residence. He entered the habitation
through the window and committed . . . battery upon [the victim].” But an
uncorroborated summary of a charging affidavit that contains facts to which
the defendant may or may not have stipulated or pleaded guilty is not one of
the approved documents that we may evaluate under the modified categorical
approach. As we have made clear before, we cannot rely on a recitation of facts
in the PSR to determine whether a prior conviction constitutes a crime of
violence. 23 Even if we were satisfied that the PSR accurately portrayed the
underlying facts, there is no indication that Garcia-Montejo pleaded guilty to
these facts or stipulated to them, which was crucial to the incorporation of the
charging affidavit in Castillo-Morales. 24
       The Government counters that we have previously held that in certain
situations reliance on the PSR for a crime of violence determination does not




       22   FLA. STAT. ANN. § 810.011(2) (West 2009).
        United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (“[T]he district court
       23

was not permitted to rely on the PSR’s characterization of the offense in order to make its
determination of whether it was a ‘drug trafficking offense.’”) (citing Shepard, 544 U.S. at 16,
19-23).
       24 Castillo-Morales, 507 F.3d at 876; see also Shepard, 544 U.S. at 20 (speaking of the
need to “avoid[] subsequent evidentiary enquiries into the factual basis for [an] earlier
conviction” as a reason to limit the judicial record for determining whether a conviction was
a violent felony under the Armed Career Criminal Act).
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                                            No. 13-40737
rise to the level of plain error if the defendant has admitted those facts. 25 The
Government argues that Garcia-Montejo admitted the facts in the PSR by
failing to file an objection to the PSR in the district court. But failure to object
to the PSR is inusufficient. 26 Even in United States v. Martinez-Vega, 27 the
principal case on which the Government relies, the defendant had at least
admitted in open court that “everything in the [PSR] [was] correct.” 28 We have
no analogous statement here. Further, in Martinez-Vega the lesser included
charge in the indictment was categorically a crime of violence. 29 That is not
the case here.         Rather, the least culpable conduct that would satisfy the
criminal information here has been held, by this court, to categorically not be
a crime of violence under the enumerated offense clause. 30
       Because the Government has failed to introduce into the record any trial
documents that further define the term dwelling as it was used in the criminal
information, we must presume that Garcia-Montejo violated the statute in the
least culpable manner. 31 This court has already held that a violation of the
statute in that manner is categorically not a crime of violence under the
enumerated offense clause. 32 It does not fit the generic, contemporary
definition of “burglary of a dwelling” because it encompasses burglary of the


        See United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006); United States
       25

v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006).
       26See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (holding that it
was clear and obvious error for the district court to rely only on the PSR to make its crime of
violence determination).
       27   471 F.3d 559 (5th Cir. 2006).
       28   Martinez-Vega, 471 F.3d at 563 (second alteration in original).
       29Id.; see also id. at 564 (Owen, J., concurring) (“The lesser charge in the indictment
stated that Martinez-Vega [committed sexual assault of a minor].”).
       30   United States v. Gomez-Guerra, 485 F.3d 301, 303-04 (5th Cir. 2007).
       31   Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
       32   Gomez-Guerra, 485 F.3d at 303-04.
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                                         No. 13-40737
curtilage rather than only the burglary of an actual dwelling. Therefore, the
district court clearly erred when it applied the 16-level crime of violence
enhancement. This clear error satisfies the first two prongs of the plain error
standard of review. 33
       We also conclude that the error affected the defendant’s substantial
rights. “When the rights acquired by the defendant relate to sentencing, the
‘outcome’ he must show to have been affected is his sentence.” 34 A sentencing
error affects a defendant’s substantial rights if he can show “a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
[he] would have received a lesser sentence.” 35 The erroneous application of the
Guidelines resulted in a 16-level enhancement for Garcia-Montejo. With the
enhancement his Guidelines range was 41-51 months of imprisonment.
Without the enhancement, he faced a Guidelines range of 0-6 months of
imprisonment. This is a significant disparity. The two ranges do not overlap.
This is sufficient to establish that Garcia-Montejo’s substantial rights were
violated. 36
       The fourth prong of the plain error test is whether the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” 37
This is a discretionary test. In previous decisions we have determined that if



       33 See Puckett v. United States, 556 U.S. 129, 135 (2009) (laying out the four-prong test
for plain error).
       34   United States v. John, 597 F.3d 263, 284 (5th Cir. 2010) (citing Puckett, 556 U.S. at
142 n.4).
       35 United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008) (citing United
States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005)).
       36See, e.g., John, 597 F.3d at 285 (concluding that an error that would have reduced
the advisory Guidelines range from 97-121 months to 70-87 months affected the defendant’s
substantial rights); see also Gonzalez-Terrazas, 529 F.3d at 298-99.
       37   Puckett, 556 U.S. at 135.
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                                            No. 13-40737
the district court’s error clearly and substantially affects a defendant’s
sentence, then that error substantially affects the fairness, integrity, and
public reputation of the judicial proceedings. 38                   In the present case, the
sentence imposed was significantly outside of the applicable Guidelines range
had the 16-level enhancement not been applied. Under these circumstances,
we exercise our discretion and we determine that the error was substantial
enough to seriously affect the fairness, integrity, or public reputation of the
judicial proceedings.
         We vacate the sentence of the district court and remand the case for
resentencing. We express no opinion on whether the district court should
permit the Government to supplement the record on remand with documents
that would conclusively establish that Garcia-Montejo’s count of conviction was
for burglary of a residence rather than of the curtilage.
                                            *      *      *
         VACATED and REMANDED.




         38   E.g., John, 597 F.3d at 286-87; United States v. Price, 516 F.3d 285, 289-90 (5th Cir.
2008).
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