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

                                                                  FILED
                                                                February 22, 2008
                               No. 07-50218
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JESUS BELTRAN-RAMIREZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 2:06-CR-558-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Jesus Beltran-Ramirez (“Beltran”) appeals the 41-month sentence imposed
following his guilty plea to illegal entry into the United States following
deportation. Beltran argues that the district court plainly erred in enhancing
his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior
conviction for a crime of violence, the burglary of a habitation. He argues that
the statute under which he was convicted, Tex. Penal Code Ann. § 30.02(a)
includes a means to commit the offense that does not meet the definition of a

      *
      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should not be published and is not precedent except under the limited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. 07-50218

generic burglary as required by the Guidelines to impose such an enhancement.
Beltran also asserts that although the indictment charged him conjunctively
under two sections of the statute, one section of which satisfied the definition of
generic burglary, his guilty plea did not establish that he committed the conduct
under that section.
      Because Beltran did not object to the enhancement in the district court,
we review for plain error. United States v. Villegas, 404 F.3d 355, 358 (5th Cir.
2005). Beltran was charged in the indictment under Texas Penal Code Ann.
§ 30.02(a) (1) and § 30.02(a)(3), which provide different means of committing
burglary of a habitation. The latter section does not require an intent to commit
a crime at the time of the unlawful entry. § 30.02(a)(3). Thus, the commission
of a burglary under § 30.02(a)(3) does not meet the generic definition of burglary
and does not constitute a crime of violence within the meaning of the Guidelines.
See United States v. Taylor, 495 U.S. 575, 598, 601 (1990); United States v.
Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007); United States v. Herrera-
Montes, 490 F.3d 390, 391-92 (5th Cir. 2007).
      The Government argues that in pleading guilty to burglary under § 30.02,
Beltran admitted all of the charges in the indictment, including the “intent to
commit a [crime]” element of § 30.02(a)(1), which meets the definition of a
generic burglary.
      We must look to the law of the jurisdiction in which the guilty plea
occurred to determine the State’s treatment of an indictment making a
conjunctive charge, as did the indictment in this case. United States v. Morales-
Martinez, 496 F.3d 356, 359 ( 5th Cir. 2007). Under Texas law, a guilty plea is
an admission of only the material facts necessary to support the conviction. Id.
at 359-60. The State is not required to prove that the defendant used each of the
means charged conjunctively in the indictment. Id. at 360. The record in this
case contains no evidence reflecting the specific subsection to which Beltran
pleaded guilty, nor does it contain the factual basis for his plea. Thus, we cannot

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determine whether Beltran pleaded guilty to an offense that meets the definition
of a generic burglary. Id. Accordingly, we hold that the district court plainly
erred in imposing a 16-level sentencing enhancement.
      Beltran also has shown that his substantial rights were affected because
there is “a reasonable probability that, but for the district court’s misapplication
of the Guidelines, [he] would have received a lesser sentence.” United States v.
Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (internal quotations and citation
omitted). In the absence of the erroneous 16-level enhancement, Beltran would
have been subject to only an eight-level enhancement of his offense level for the
commission of an aggravated felony. See § 2L1.2(b)(1)(C) . His total offense level
would have been reduced from 21 to 13, and, with a criminal history category of
II, his Guidelines range would have been 15-21 months, much less than the 41-
month sentence imposed.         We have held that an error resulting in a
substantially different sentence affects the fairness of the judicial proceeding.
See Gonzales, 484 F.3d at 716. Thus, Beltran has shown that the District Court
plainly erred.   In light of its error, we VACATE Beltran’s sentence and
REMAND for resentencing.
      Beltran argues that his sentence violates due process because it exceeds
the statutory maximum for the offense charged in the indictment. He concedes
that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998); he raises it only to preserve the issue for further review. We agree
that this issue is foreclosed and therefore AFFIRM, in part, the District Court.
See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition
for cert. filed (Aug. 28, 2007) (No. 07-6202).
      AFFIRMED, in part; VACATED, in part; REMANDED for resentencing.




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