              Case: 13-14836     Date Filed: 12/23/2014   Page: 1 of 9


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-14836
                           ________________________

                   D.C. Docket No. 5:13-cr-00039-ACC-PRL-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

RAFAEL DIAZ-MORALES,
a.k.a. Rafael Diaz,

                                                               Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 23, 2014)

Before MARTIN, JULIE CARNES and BLACK, Circuit Judges.

MARTIN, Circuit Judge:

      Rafael Diaz-Morales appeals his sentence for illegal re-entry. He argues that

the District Court improperly treated his prior conviction for burglary as a crime of
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violence under United States Sentencing Guideline § 2L1.2(b)(1)(A)(ii), which

significantly increased his sentence. 1 After careful review, and with the benefit of

oral argument, we affirm.

                                              I.

       Mr. Diaz-Morales pleaded guilty to illegal re-entry in violation of 18 U.S.C.

§ 1326(a) and (b)(1). His presentence investigation report (“PSR”) increased his

offense level for sentencing by sixteen levels on account of a crime-of-violence

enhancement under USSG § 2L1.2(b)(1)(A)(ii). This increase was based on his

prior conviction for burglary in violation of section 810.02(1) of the Florida

Statutes. In light of his enhanced offense level of 21 and his criminal history

category of IV, the PSR calculated a guideline range of 57- to 71-months

imprisonment, and the District Court sentenced Mr. Diaz-Morales to 57 months.

       Mr. Diaz-Morales did not object to the District Court’s application of the

crime-of-violence enhancement either before or during sentencing, so we review

only for plain error. See United States v. Frazier, 605 F.3d 1271, 1282 (11th Cir.

2010). Plain error exists if there was (1) error, (2) that is plain, and (3) that affects

a substantial right. Id. If these requirements are met, we may exercise our



1
  Mr. Diaz-Morales also argues that his enhanced sentence violated his Fifth and Sixth
Amendment rights because the fact of his prior conviction was not charged in an indictment and
proven to a jury beyond a reasonable doubt. But, as he recognizes, Supreme Court precedent
forecloses this argument. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219 (1998). We will not discuss it further.
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discretion to correct the error if it (4) “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quotation omitted).

                                            II.

       Mr. Diaz-Morales objects for the first time on appeal to the District Court’s

application of Guideline section 2L1.2(b)(1)(A)(ii), which imposes a sixteen-level

enhancement for unlawfully entering or remaining in the United States after a

conviction for a felony that is a “crime of violence.” A “crime of violence” is

defined by reference to an enumerated list of qualifying offenses, one of which is

“burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii).

       There is no question that Mr. Diaz-Morales was previously convicted of

burglary under Florida Statute § 810.02(1)(a) (2000). But not all burglary

convictions are crimes of violence. Burglary convictions are predicate crimes of

violence “only if the underlying state offense meets the generic definition of

burglary” of a dwelling. See United States v. Ramirez-Flores, 743 F.3d 816, 820

(11th Cir. 2014). This is known as the “categorical approach.” Id.

       Not all burglary statutes will match the generic definition of burglary of a

dwelling. If a burglary statute is overbroad—if it “‘sweeps more broadly than the

generic burglary [of a dwelling], [then] a conviction under that law cannot

categorically count as a “crime of violence,” even if the defendant actually

committed burglary [of a dwelling] in its generic form.’” Id. (alterations adopted)


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(quoting Descamps v. United States, 570 U.S. ___, ___, 133 S. Ct. 2276, 2283

(2013)). But even a conviction under an overbroad statute can still be a “crime of

violence” if the statute is “divisible.”

      A divisible statute is one that “sets out one or more elements of the offense

in the alternative, in effect creating several different crimes.” Id. (citing

Descamps, 570 U.S. at ___, 133 S. Ct. at 2283–85). When the statute of

conviction is divisible, “a modified categorical approach applies.” Id. Under the

modified categorical approach, if at least one of a divisible statute’s alternatives

matches the generic definition of burglary of a dwelling, the sentencing court may

“‘consult a limited class of documents, such as indictments and jury instructions, to

determine which alternative element formed the basis of the defendant’s prior

conviction.’” Id. (quoting Descamps 570 U.S. at ___, 133 S. Ct. at 2281). If those

so-called Shepard documents, Shepard v. United States, 544 U.S. 13, 125 S. Ct.

1254 (2005), indicate that the defendant was convicted under an alternative with

elements that match the generic definition of burglary of a dwelling, then this prior

conviction is a crime of violence.

      But “[i]f the statute of conviction defines burglary ‘not alternatively, but

only more broadly than the generic offense,’” the statute is indivisible and “the

modified categorical approach ‘has no role to play.’” Id. at 821 (quoting

Descamps, 570 U.S. at ___, ___, 133 S. Ct. at 2283, 2285). If the modified


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categorical approach does not apply, a reviewing court may not look to the

Shepard documents. Instead, the court must look only to the elements of the

statute of conviction to determine whether the statute defines burglary more

broadly than generic burglary of a dwelling. If the statute is overbroad, then the

conviction is not a crime of violence under the categorical approach. Finally, we

note that whatever approach is used—categorical or modified categorical—the

sentencing court must always focus on the elements of the statute of conviction and

not the defendant’s conduct. See Descamps, 570 U.S. at ___, 133 S. Ct. at 2292–

93.

                                          III.

      Mr. Diaz-Morales did not object at sentencing to the District Court’s

conclusion that his prior Florida burglary conviction was a crime of violence. He

argues for the first time on appeal that the elements of the Florida statute of

conviction, § 810.02(1), are broader than the elements of generic burglary of a

dwelling. The District Court did not say whether it used the categorical or

modified categorical approach to reach that holding. (This is not surprising,

because Mr. Diaz-Morales did not object or demand any explanation from the

District Court. In the way we have just set out above, a sentencing court may, in

the right circumstances, use either approach in deciding whether a prior conviction

is a crime of violence. If a sentencing court decides that a prior conviction is not a


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crime of violence under the categorical approach, its inquiry does not stop there. It

must go on to consider whether the modified categorical approach applies, and if it

does, whether the conviction qualifies as a crime of violence under that approach.

See United States v. Howard, 742 F.3d 1334, 1345–46 (11th Cir. 2014). For that

reason, Mr. Diaz-Morales must show that it is plain error to treat his prior

conviction as a crime of violence under either approach.

       Mr. Diaz-Morales has not made the required showing. Our review leads us

to conclude that it is not plain error to treat his prior conviction as a crime of

violence under the modified categorical approach. This Court has no controlling

precedent holding that section 810.02(1) is indivisible for federal sentencing

purposes. Therefore, application of the modified categorical approach to this

statute is not plain error. Finally, because Mr. Diaz-Morales has abandoned any

argument that his conviction does not actually qualify as a crime of violence under

the modified categorical approach, we need not decide that question, and Mr. Diaz-

Morales cannot succeed in this appeal. 2



2
  We need not decide whether it is also plain error to treat Mr. Diaz-Morales’s prior conviction as
a crime of violence under the categorical approach. Even if it is, he must still show that it is
plain error to apply the modified categorical approach, or that it is plain error to hold that his
conviction qualifies under that approach—showings he cannot make. See Howard, 742 F.3d at
1345–47 (explaining that if a sentencing court holds that a prior conviction does not qualify
under the categorical approach, it proceeds to consider whether the modified categorical
approach applies and whether the conviction qualifies under that approach). As we have held in
a different context: if a litigant must make two showings to succeed, but fails to make one, we
need not address the other. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (discussing
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       At the time of Mr. Diaz-Morales’s prior conviction, Florida law defined

burglary as

       entering or remaining in 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 remain.

Fla. Stat. § 810.02(1)(a) (2000). A “dwelling” is

       a building or conveyance of any kind, including any attached porch,
       whether such building or conveyance is temporary or permanent,
       mobile or immobile, which has a roof over it and is designed to be
       occupied by people lodging therein at night, together with the
       curtilage thereof.

Id. § 810.011(2).

       It is not plain error to treat this statute as divisible and apply the modified

categorical approach to determine whether it qualifies as a crime of violence. Mr.

Diaz-Morales has pointed to no Supreme Court or Eleventh Circuit precedent

deciding whether a prior conviction for burglary under section 810.02(1) is

divisible. And “there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving” the disputed issue. United States

v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam); see also

Ramirez-Flores, 743 F.3d at 822 (“An error is ‘plain’ if controlling precedent from

the Supreme Court or the Eleventh Circuit establishes that an error has occurred.”).


ineffective assistance of counsel). Cf. Howard, 742 F.3d at 1347 (“Courts are free to pursue the
most efficient means of deciding a particular case.”).
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       We addressed and rejected a similar argument in Ramirez-Flores. There, the

defendant argued that it was plain error to treat a South Carolina burglary statute as

divisible. Ramirez-Flores, 743 F.3d at 822–23. We held that it was neither “plain

nor obvious that the . . . statute is indivisible” in the absence of a case “interpreting

whether [the statute] is divisible for federal sentencing purposes.” Id. at 822. So

too here: no controlling precedent has held that section 810.02(1) is indivisible for

federal sentencing purposes. Thus, “[w]e need not in this case definitively decide

that the . . . statute at issue is divisible. We need decide only that it is not plain or

obvious that the statute is indivisible.” Id. at 823. Without controlling precedent

declaring section 810.02(1) indivisible for federal sentencing purposes, it was not

plain error for the District Court to find it divisible and apply the modified

categorical approach.

       As we’ve said, we need not decide whether Mr. Diaz-Morales’s conviction

actually qualifies as a crime of violence under the modified categorical approach.

By not briefing the question, he has abandoned any argument that his conviction

does not qualify. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.

2003) (arguments not briefed are abandoned).

       Neither this Court nor the Supreme Court has ever had occasion to hold that

section 810.02(1) is indivisible. That being the case, it is not plain error to hold

otherwise and apply the modified categorical approach. The District Court did not


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plainly err when it held that Mr. Diaz-Morales’s conviction was a “crime of

violence” and applied the sixteen-level enhancement mandated by USSG § 2L1.2.

      AFFIRMED.




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