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

                                                                  FILED
                                                                January 16, 2009
                                No. 07-51444
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JULIO AGUILAR-ROCHA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-1036-ALL


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Julio Aguilar-Rocha appeals the 78-month sentence imposed following his
guilty plea conviction of one count of illegal reentry. Aguilar-Rocha argues that
the district court improperly enhanced his offense level pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on its erroneous determination that his prior Texas
conviction of burglary of a habitation was a crime of violence as defined by the
Sentencing Guidelines. Aguilar-Rocha specifically contends that the district
court erred because its conclusion that his prior state conviction was a crime of

      *
      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should not be published and is not precedent except under the limited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. 07-51444

violence relied exclusively upon the characterization of his offense in the
presentence report (PSR).
      Aguilar-Rocha failed to object to the district court’s characterization of his
prior conviction as a crime of violence and did not challenge the imposition of the
16-level enhancement under § 2L1.2(b)(1)(A)(ii). Accordingly, this court’s review
is for plain error. United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.
2005). To obtain relief under the plain error standard, Aguilar Rocha must
establish that (1) there was an error; (2) the error was clear and obvious; and
(3) the error affected his substantial rights. Id. (citation omitted). If these
conditions are met, this court may exercise its discretion to correct the error only
if it seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. Id. (quotation marks and citation omitted).
      The record does not indicate that the Government produced a judgment
of conviction or other adjudicative records at sentencing to establish that
Aguilar-Rocha’s prior state court conviction warranted a 16-level enhancement.
Moreover, there is no evidence that the district court reviewed evidence other
than the PSR in determining that Aguilar-Rocha’s prior offense was a crime of
violence. Thus, the record suggests that the district court relied solely upon the
PSR’s characterization of the offense to justify its imposition of an enhancement
under § 2L1.2. The court’s exclusive dependence on the PSR constitutes an error
that was clear and obvious. See Garza-Lopez, 410 F.3d at 275.
      However, Aguilar-Rocha has failed to show that the error affected his
substantial rights. When determining whether a state conviction constitutes a
specifically enumerated offense for purpose an enhancement under § 2L1.2, we
use a “common sense approach.” United States v Izaguirre-Flores, 405 F.3d 270,


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                                  No. 07-51444

274-75 (5th Cir. 2005). Under this approach, we determine whether a violation
of the underlying state statute constitutes an enumerated offense based upon
how the enumerated offense is understood in its “‘ordinary, contemporary, [and]
common’ meaning.” Id. at 275. If it is determined that the statute of conviction
provides for various means of commission, the court may “examine certain
adjudicative records to determine whether the prior conviction qualifies as an
enumerated offense.” United States v. Murillo-Lopez, 444 F.3d 337, 339-40 (5th
Cir. 2006). These records include the charging document, the plea agreement,
the plea colloquy transcript, and any explicit findings made by the trial judge to
which the defendant assented. Id. at 340.
      In the instant case, the parties agree that Aguilar-Rocha was convicted of
burglary of a habitation under TEX. PENAL CODE § 30.02(a). This statute states
that a person commits the offense of burglary of a habitation if, without the
effective consent of the owner, the person “enters a habitation, or a building (or
any portion of a building) not then open to the public, with intent to commit a
felony, theft, or an assault.” TEX. PENAL CODE § 30.02(a)(1). The statute
alternatively provides that a person commits burglary of a habitation if he
“enters a building or habitation and commits or attempts to commit a felony,
theft, or an assault” Id. at § 30.02(a)(3). This court has determined that a
conviction under § 30.02(a)(1) is equivalent to the enumerated offense “burglary
of a dwelling.” See United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th
Cir. 2005). However, this court has held that a conviction under § 30.02(a)(3) is
not the equivalent of the enumerated offense of “burglary of a dwelling” because
the provision does not require entry with an intent to commit a crime. See
United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008).


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      The Government on appeal has provided copies of the indictment and
judgment of conviction related to Aguilar-Rocha’s prior state conviction. We
construe the Government’s submission of these adjudicative records as a motion
to supplement the appellate record with these documents. Aguilar-Rocha has
not objected to the inclusion of the documents, nor is there any dispute about the
documents’ authenticity. Accordingly, we grant the Government’s motion to
supplement the record with copies of the indictment and judgment of conviction
from Aguilar-Rocha’s prior Texas state conviction of burglary of a habitation.
      The indictment specifically tracks the language of § 30.02(a)(1), and the
judgment confirms that Aguilar-Rocha pleaded guilty to the offense as it was
alleged in the indictment. Thus, the record establishes that Aguilar-Rocha
pleaded guilty to the offense of burglary of a habitation, which is the equivalent
of the enumerated offense of “burglary of a dwelling.” Garcia-Mendez, 420 F.3d
at 456-57. Aguilar-Rocha therefore has failed to demonstrate that but for the
district court’s error in relying solely on the PSR, the district court would not
have imposed an enhancement under § 2L1.2(b)(1)(A)(ii). Accordingly, he has
not demonstrated reversible plain error. Id. at 456.
      The judgment of the district court is AFFIRMED. The Government’s
motion to supplement the record is GRANTED.




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