                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                         UNITED STATES COURT OF APPEALS                    October 6, 2010
                                      TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                             No. 09-2305
                                                   (D.C. No. 1:08-CR-01684-JCH-1)
 v.
                                                               (D. N.M.)
 EMIGDIO BUSTILLOS - MEDRANO,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, HOLLOWAY, Circuit Judge, and MELGREN,
District Judge.**


       Mr. Emigdio Bustillos-Medrano (Bustillos or defendant) was indicted on one

count of illegal re-entry of a removed alien. Mr. Bustillos brings this direct appeal from

his sentence, an appeal which is authorized by 18 U.S.C. § 3742(a) and is within the

jurisdiction granted this court by 28 U.S.C. § 1291.

                                             I

       Mr. Bustillos was incarcerated in Albuquerque after his arrest on a state charge of


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.32.1.
       **
        The Honorable Eric F. Melgren, United States District Judge for the District of
Kansas, sitting by designation.
burglary. A few days after defendant’s arrest, an agent from the federal Immigration and

Customs Enforcement was checking the immigration status of inmates at the jail and

determined that Bustillos was not only in the country illegally but that he had been deported

previously. Some months later, after defendant had pleaded guilty to the burglary charge and

received a suspended sentence, defendant was prosecuted in federal court for illegal re-entry

after removal, a violation of 8 U.S.C. § 1326. Defendant pleaded guilty.

         The presentence report (PSR) recommended that the base offense level (eight) be

increased by sixteen because prior to his removal defendant had been convicted of

“residential burglary,”1 a “crime of violence” for purposes of § 2L1.2(b)(1)(A)(ii) of the

Sentencing Guidelines. Defendant was in criminal history category six. The resulting

advisory guidelines range was 77 to 96 months.

         Significantly for purposes of this appeal, Mr. Bustillos did not question the application

of the sixteen-level enhancement in the calculation of the advisory guidelines sentence.

Instead, he asked the district court to vary downward from the calculated range and impose

a sentence of fifteen months’ imprisonment. He argued that the advisory guidelines sentence

was unreasonable in his case and more than necessary to achieve the goals of sentencing set

out in 18 U.S.C. § 3553(a). He cited cases in which other courts have, in specific

circumstances found the sixteen-level enhancement “excessively harsh in effect,” in his

words.


         1
     As discussed infra, “residential burglary” is not an offense defined per se in the
New Mexico statutes.

                                               -2-
       The judge did grant a downward variance from the Guidelines range, although the

variance was not nearly as great as the one Mr. Bustillos had requested. The judge sentenced

defendant to sixty months’ imprisonment.

                                              II

       On appeal, Mr. Bustillos challenges only the calculation of the applicable advisory

guideline range, specifically the sixteen-level enhancement under U.S.S.G. §

2L1.2(b)(1)(A)(ii). Thus, his challenge is only to the procedural reasonableness of his

sentence. See United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010) (noting that

we review criminal sentences for reasonableness, which includes substantive and procedural

components, and that proper calculation of the advisory guideline range is necessary for

procedural reasonableness). Because Mr. Bustillos did not raise this issue in the district

court, he concedes that our review is only for plain error. See United States v. Zubia-Torres,

550 F.3d 1202 (10th Cir. 2008).

       The sixteen-level enhancement at issue here is added to the base level for the crime

of illegal re-entry if the defendant prior to removal from this country had been convicted of

a crime falling within certain categories. Of those categories, the one relevant in this appeal

is that of “a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The authoritative application

notes for this guideline include a definition of “crime of violence,” and that definition

provides that the term includes, inter alia, the offense of “burglary of a dwelling” under

federal, state or local law. Id., comment. (n.1(B)(iii)).

       Mr. Bustillos asserts that the New Mexico statutes do not in fact include either a

                                             -3-
crime of “burglary of a dwelling,” the term used in the Guidelines definition, or a crime of

“residential burglary,” as his prior conviction was described in the PSR. The statute defining

the basic offense of burglary in New Mexico states:

          A. Any person who, without authorization, enters a dwelling house with
       intent to commit any felony or theft therein is guilty of a third degree felony.
          B. Any person who, without authorization, enters any vehicle, watercraft,
       aircraft or other structure, movable or immovable, with intent to commit any
       felony or theft therein is guilty of a fourth degree felony.

N.M. Stat. Ann. § 30-16-3.2

       Defendant points out that the PSR described his relevant prior conviction in 2000 as

being for “residential burglary.” In further description, the PSR says that a victim had

reported that a bicycle and a drill had been taken from a storage shed, and that other items,

including a backpack, binoculars, and a handgun, had been taken from within the victim’s

residence. But, defendant says, the PSR does not say which items were the basis of the

conviction, and there were no documents from the state court case to supply that information.

If the conviction were based only on the items taken from the storage shed, it would not have

been burglary of a dwelling and the enhancement should not have been applied. If the

burglary had been only of the storage shed, the proper guidelines enhancement would have

been only four levels, which would have resulted in an advisory guidelines range of only 24-

30 months, defendant asserts.

       In making the guidelines determination for enhancement based on a prior conviction,


       2
        Section 30-16-4 of the New Mexico statutes defines “aggravated burglary.” That
provision is not at issue in this appeal.

                                            -4-
the sentencing court is limited to examining the language of the statute of conviction, the

terms of the charging document, the terms of the plea agreement or transcript of the plea

colloquy or comparable judicial records. United States v. Taylor, 413 F.3d 1146, 1157 (10th

Cir. 2005). Because the statute at issue here is not determinative, and there were no other

court documents, Mr. Bustillos argues that the district court here could not have determined

whether he had been convicted in 2000 of burglary of the residence or only of the storage

shed. Because this made a substantial difference in calculating the applicable guideline

range, defendant concludes, it affected substantive rights and requires reversal.

       The government’s argument in response relies primarily on the strict standards of

plain error review. Ordinarily, the government would have had the burden of providing

documentary evidence to support the enhancement if challenged by the defendant. But the

government argues that where, as here, the defendant has not challenged the enhancement,

the government has no such burden. This, the government contends, is what this court held

in United States v. Zubia-Torres, 550 F.3d 1202, 1204 (10th Cir. 2008), and that case is

controlling here.

       Zubia-Torres also involved a sixteen-level enhancement of the offense level for illegal

re-entry, but in that case the prior conviction on which the enhancement was based was a

drug trafficking crime.    On appeal, Mr. Zubia-Torres challenged the enhancement,

contending that the Nevada statute on which the previous conviction had been based was

broad enough to encompass mere possession offenses as well as trafficking offenses, and that

therefore the basis for the enhancement in federal court had not been established. This court

                                            -5-
held that the argument could not clear the third hurdle of plain error review: Zubia-Torres

could not show that his substantial rights had been violated because the government might

have been able to prove the basis for the enhancement had a challenge been made in the trial

court requiring it to do so. Because plain error review controlled, the burden on appeal was

shifted to Zubia-Torres to show that the documents of the prior state conviction would not

have proven the basis for the enhancement, and he had no such evidence.

       We conclude that Zubia-Torres is controlling. Here, as in that case, the defendant

forfeited – rather than waived – a challenge to the enhancement in the district court. The

record in the instant case, as in Zubia-Torres, discloses that counsel did not consciously

choose to forego the argument but failed to recognize the argument. See Zubia-Torres, 550

F.3d at 1205. Accordingly, we can review the issue, but only for plain error. Id.

       Under plain error review, the appellant must first show “(1) error, (2) that is plain, (3)

which affects substantial rights. If these criteria are met, then we may exercise discretion to

correct the error if it seriously affects the fairness, integrity, or public reputation of the

judicial proceedings.” Id. at 1208 (citing United States v. Johnson, 414 F.3d 1260, 1263

(10th Cir. 2005)).

       On the merits, again Zubia-Torres is directly on point and so is controlling precedent.

We said there that “because Mr. Zubia-Torres failed to present any evidence suggesting that

imposition of the § 2L1.2 enhancement was ultimately inappropriate in his case, he cannot

show that his substantial rights were affected by any error that may have been committed.”

Id.

                                              -6-
      The same is true in this case. Mr. Bustillos cannot show that his substantial rights

were affected. There is only a speculative possibility that Mr. Bustillos could have

successfully challenged the enhancement. We cannot say that the sentence here was

procedurally unreasonable on the basis of such speculation. Accordingly, the sentence must

be and hereby is AFFIRMED.

                                                              Entered for the Court

                                                              William J. Holloway, Jr.
                                                              Circuit Judge




                                           -7-
