     Case: 16-10084       Document: 00514450175        Page: 1    Date Filed: 04/27/2018




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


                                      No. 16-10084                       FILED
                                                                     April 27, 2018
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,
v.

EDUARDO PRIMITIVO HERNANDEZ-SAENZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-243-1


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:*
       In this sentencing appeal, Eduardo Primitivo Hernandez-Saenz contests
a 16-level enhancement under the 2013 Sentencing Guidelines for a prior
burglary conviction in Texas, an offense the district court deemed a “crime of
violence” under § 2L1.2(b)(1)(A)(ii). At the time of sentencing, the court’s view
was correct. But intervening law has buoyed Hernandez’s objections to the
enhancement (though his specific points, like the law, have evolved during the
course of this appeal).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 16-10084         Document: 00514450175       Page: 2     Date Filed: 04/27/2018



                                        No. 16-10084
       Applying the law applicable today, rather than the law on the books
when Hernandez was sentenced, we conclude the district court plainly erred
by imposing the 16-level enhancement. Accordingly, we VACATE and
REMAND for resentencing.
                                    I. BACKGROUND
A.     Hernandez’s Sentencing
       Hernandez pleaded guilty to one count of illegal reentry after
deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). In developing a
recommended sentencing range for Hernandez’s offense, the presentence
report (PSR) relied on the 2013 Sentencing Guidelines. The PSR assigned a
base offense level of eight under § 2L1.2(a). It then recommended a 16-level
“crime of violence” enhancement under § 2L1.2(b)(1)(A)(ii) 1 based on
Hernandez’s prior conviction for burglary of a habitation under Texas Penal
Code       § 30.02(a)(1).   After   a   three-level    reduction     for   acceptance      of
responsibility, Hernandez’s total offense level was 21. With a criminal history
category of VI, his PSR-recommended Guidelines range was 77 to 96 months.
       Hernandez objected to the 16-level enhancement, insisting that Penal
Code § 30.02 is not a generic burglary and therefore not a crime of violence
under § 2L1.2. 2 He asserted that § 30.02 is broader than “burglary of a



       1 The 2013 Federal Sentencing Guidelines provided for such an enhancement if the
defendant previously was removed after being convicted of a crime of violence. U.S.
SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (U.S. SENTENCING COMM’N 2013)
[U.S.S.G.]. A crime of violence, as defined in the commentary, included the enumerated
offense of “burglary of a dwelling.” § 2L1.2 cmt. n.1(B)(iii). Effective November 1, 2016, the
Sentencing Commission amended § 2L1.2 so that it no longer includes such a 16-level
enhancement based on a prior removal after a felony conviction of a crime of violence. See
U.S.S.G. App. C, amend. 802. This amendment was not retroactive and thus does not affect
Hernandez’s sentencing under the 2013 Guidelines. See id.
       2 Since “burglary of a dwelling” is undefined in the Guidelines, we interpret it to

encompass only “the elements contained in the generic, contemporary meaning of that
offense.” United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016). Hence the frequent
references by the parties and this court to “generic burglary.”
                                              2
     Case: 16-10084        Document: 00514450175          Page: 3     Date Filed: 04/27/2018



                                        No. 16-10084
dwelling” because it encompasses unlawfully entering certain vehicles and
certain structures attached or appurtenant to a vehicle. 3
       At the sentencing hearing, the district court overruled Hernandez’s
objections. The court then sentenced Hernandez to 77 months imprisonment,
which fell within the revised Guidelines range of 70 to 87 months. 4 Hernandez
timely appealed.
B.     The Evolution of Hernandez’s Appeal
       The legal landscape has transformed in the two years since Hernandez
filed his notice of appeal in January 2016.
       That June, the Supreme Court decided Mathis v. United States,
concerning which prior state convictions count toward enhanced federal
sentences. 5 Mathis, in turn, prompted supplemental briefing in this case. We
then stayed the case pending our panel decision in United States v. Uribe. 6 If
that were not enough, after Uribe issued that October, we placed Hernandez’s
appeal in abeyance to await our en banc decision in United States v. Herrold, 7
decided in February 2018.
       In his opening brief, Hernandez argued for the first time that Penal Code
§ 30.02 is indivisible—that it “contains but one offense”—and may be
committed by entering without intent to commit a further crime, broadening
the offense beyond generic burglary. Because of its indivisibility, he continued,



       3  Hernandez also objected to the PSR’s conclusion that he was subject to a heightened,
20-year statutory maximum under 8 U.S.C. § 1326(b). He noted particularly that the
indictment did not allege a requisite prior conviction. But he conceded that his argument was
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239–47 (1998) and was raised
solely for preservation purposes. The argument remains foreclosed.
        4 The Guidelines range was revised when the district court granted the Government’s

motion for a one-level downward departure under § 5K1.1 for cooperation.
        5 136 S. Ct. 2243 (2016).
        6 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017), overruled by United

States v. Herrold, 883 F.3d 517 (5th Cir. 2018).
        7 883 F.3d 517 (5th Cir. 2018).

                                               3
    Case: 16-10084         Document: 00514450175     Page: 4    Date Filed: 04/27/2018



                                    No. 16-10084
§ 30.02 is not subject to the modified categorical approach and is therefore
irreconcilable with the concept of burglary as used to define a crime of violence
in § 2L1.2(b)(1)(A)(ii).
      Hernandez acknowledged that he had not raised “this portion of the
argument” below. But he maintained that the district court plainly erred, in
light of § 30.02’s overbreadth, by treating his burglary conviction as a crime of
violence for enhancement purposes. Hernandez recognized that his argument
was foreclosed by our decision in United States v. Conde-Castaneda 8 and our
then-controlling panel decision in Herrold. 9 He nevertheless raised the
indivisibility issue to preserve it for further review, anticipating a favorable
Supreme Court decision in Mathis. Hernandez also reargued that Penal Code
§ 30.02 does not qualify as generic burglary because it encompasses
burglarizing vehicles adapted for overnight use. 10
      Before the Government responded to Hernandez’s opening brief, the
Supreme Court decided Mathis, clarifying, as Hernandez had hoped, that a
statute is indivisible—and thus not amenable to modified categorical
analysis—if it lists alternative means of an offense, rather than alternative
elements. 11 In light of Mathis, we requested supplemental briefing, only to stay
the proceedings pending our decision in Uribe. Several months later, we held
in Uribe that, even post-Mathis, § 30.02(a) is divisible. 12
      The parties then filed post-Mathis, post-Uribe supplemental briefs.
Hernandez conceded that his indivisibility argument remained foreclosed by



      8  753 F.3d 172 (5th Cir. 2014).
      9  United States v. Herrold, 813 F.3d 595 (5th Cir. 2016), cert. granted, judgment
vacated, 137 S. Ct. 310 (2016).
       10 Hernandez also again challenged his sentencing under § 1326(b)(2) but conceded

that the issue remained foreclosed by Almendarez-Torres.
       11 136 S. Ct. at 2252–54.
       12 Uribe, 838 F.3d at 669–71.

                                           4
     Case: 16-10084      Document: 00514450175        Page: 5     Date Filed: 04/27/2018



                                     No. 16-10084
Uribe—nevertheless, he persisted. He also argued that Mathis did not preclude
his challenge that § 30.02 is broader than generic burglary because it
contemplates the burglary of both buildings and vehicles. The Government
responded that Hernandez’s arguments were foreclosed.
      After receiving the post-Mathis and -Uribe briefing, we pushed pause
once more, this time to await en banc guidance in Herrold. A few weeks ago,
the full court spoke, overruling Uribe: Penal Code § 30.02(a)(1) and (a)(3) were
indivisible. With Herrold decided, and in the interest of justice, we have
expedited the process of resuming arguments where we left off.
                              II. STANDARD OF REVIEW
       Ordinarily, we review a district court’s interpretation and application of
the Guidelines de novo. 13 But “[w]hen a defendant objects to his sentence on
grounds different from those raised on appeal, we review the new arguments
raised on appeal for plain error only.” 14
       Hernandez has asserted from the start that Penal Code § 30.02 is “not a
generic burglary and hence, not a crime of violence under § 2L1.2.” But he
concedes that he raised for the first time on appeal his specific argument that
§ 30.02 is (1) indivisible and (2) overbroad for capturing unlawful entry without
intent to commit a further crime. As to “that portion of the argument,”
Hernandez acknowledges the appropriate standard is plain-error review.
       In other words, Hernandez argued below that § 30.02 is not a crime of
violence, but he supplemented the legal reasoning behind that argument on
appeal. So there is perhaps room for debate over whether we should review his
overarching contention—that enhancement under § 2L1.2(b)(1)(A)(ii) was




       13  See United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc),
cert. denied, 543 U.S. 1076 (2005).
        14 United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).

                                            5
     Case: 16-10084       Document: 00514450175         Page: 6    Date Filed: 04/27/2018



                                      No. 16-10084
improper—de novo or for plain error. But we need not linger over that
unbriefed debate, as Hernandez succeeds even under plain-error review.
       Under the plain-error standard articulated by Federal Rule of Criminal
Procedure 52(b), a defendant must show (1) an error (2) that is “clear or
obvious” (3) that “affected the defendant’s substantial rights.” 15 If the
defendant     satisfies   these    three    prongs,     “the   court    of   appeals    has
the discretion to remedy the error—discretion which ought to be exercised only
if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” 16
                                    III. DISCUSSION
       The pertinent law has morphed during Hernandez’s appeal. In weighing
his arguments, we apply the law as it stands today, not as it stood when he
was sentenced. 17 And under today’s precedent, the district court clearly erred
in applying the 16-level enhancement under § 2L1.2(b)(1)(A)(ii).
       While this appeal was in abeyance, we held en banc in Herrold that
§ 30.02(a)(1) and (a)(3) are indivisible and that the latter, specifically, stretches
beyond generic burglary. 18 Therefore, neither § 30.02(a)(1) nor (a)(3) qualifies
as generic burglary and, in turn, neither qualifies as a crime of violence within
the meaning of § 2L1.2(b)(1)(A)(ii) of the 2013 Guidelines. 19 Herrold thus
vindicates Hernandez’s argument that his conviction for burglary of a
habitation does not justify the 16-level enhancement. And while the sentencing



       15 Puckett v. United States, 556 U.S. 129, 135 (2009); see FED. R. CRIM. P. 52(b).
       16 Puckett, 556 U.S. at 135 (cleaned up).
       17 United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc).
       18 883 F.3d at 536–37.
       19 Although Herrold dealt with the meaning of generic burglary in the context of the

Armed Career Criminal Act (ACCA), how we interpret terms in the ACCA informs how we
interpret the Guidelines. See, e.g., United States v. Bernel-Aveja, 844 F.3d 206, 212–14 (5th
Cir. 2016) (using cases interpreting burglary as used in the ACCA to define that term as used
in the Guidelines).
                                             6
    Case: 16-10084      Document: 00514450175         Page: 7     Date Filed: 04/27/2018



                                     No. 16-10084
court did not have the benefit of Herrold at the time, its application of the
enhancement is “clear or obvious error.” 20 Hernandez therefore satisfies the
first and second prongs of plain-error review.
      As for the third prong—whether the error “affected the defendant’s
substantial rights” 21—we are guided by the Supreme Court’s reasoning in
Molina-Martinez:
      Nothing in the text of Rule 52(b), its rationale, or the Court’s
      precedents supports a requirement that a defendant seeking
      appellate review of an unpreserved Guidelines error make some
      further showing of prejudice beyond the fact that the erroneous,
      and higher, Guidelines range set the wrong framework for the
      sentencing proceedings. 22
And where “the record is silent as to what the district court might have done
had it considered the correct Guidelines range, the court’s reliance on an
incorrect range in most instances will suffice to show an effect on the
defendant’s substantial rights.” 23 In fact, “[a]bsent unusual circumstances,” a
defendant challenging an erroneous Guidelines calculation “will not be
required to show more” than the calculation error itself. 24
      Here, the district court used an incorrect Guidelines range. And nothing
in the record suggests it intended to impose this sentence irrespective of that
range. To the contrary, the judge noted at the sentencing hearing that, based
on then-controlling Fifth Circuit law, Texas burglary was “still . . . a crime of
violence, even after Shepard and after Taylor.” He continued, “I think this is a
valid enhancement under Fifth Circuit law. What the Supreme Court
ultimately will do with it, it will take a Supreme Court case to decide that.”



      20 See Puckett, 556 U.S. at 135.
      21 Puckett, 556 U.S. at 135.
      22 Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
      23 Id. at 1347.
      24 Id.

                                            7
    Case: 16-10084       Document: 00514450175          Page: 8     Date Filed: 04/27/2018



                                      No. 16-10084
      Moreover, even were the district court to determine on remand that
Hernandez’s burglary conviction qualifies as an “aggravated felony” for
purposes of the eight-level enhancement under § 2L1.2(b)(1)(C), the Guidelines
range would be 30 to 37 months. Contrast that with the range applied to
Hernandez: 70 to 87 months. That is a roughly four-year differential. Given
the district judge’s close attention to the ever-developing law on Texas burglary
and crimes of violence, the lack of any qualifying language regarding reliance
on the Guidelines, and the significant disparity caused by the erroneous
enhancement, Hernandez’s substantial rights were affected by the district
court’s now-invalid interpretation of the 2013 Guidelines.
      The fourth and final prong of plain-error review “asks whether the error
affects ‘the fairness, integrity, or public reputation of judicial proceedings’ such
that the appellate court should exercise its discretion to correct the error.” 25
Whether to exercise our discretion under the fourth prong must be decided “on
a case-specific and fact-intensive basis.” 26 We do not apply “a blanket rule that
once prejudice is found under the third plain error prong, the error invariably
requires correction.” 27 But we believe it is appropriate to exercise our discretion
in this case.
      One factor we have considered under the fourth prong is “the degree of
the error” identified. 28 Hernandez was sentenced with reference to an
erroneous range of 70 to 87 months. Without the 16-level enhancement for
crimes of violence, and even were the district court to apply the eight-level
enhancement for aggravated felonies, Hernandez’s recommended range would
be only 30 to 37 months, which, at this point, is time served. In the context of



      25 Escalante-Reyes, 689 F.3d at 425 (citing Puckett, 556 U.S. at 135).
      26 Puckett, 556 U.S. at 142.
      27 Escalante-Reyes, 689 F.3d at 425 (cleaned up).
      28 United States v. Davis, 602 F.3d 643, 651 (5th Cir. 2010) (citations omitted).

                                             8
     Case: 16-10084       Document: 00514450175          Page: 9     Date Filed: 04/27/2018



                                       No. 16-10084
our plain-error jurisprudence, a sentencing disparity of 40 to 50 months is
attention-grabbing. 29
       It is true, as the Government points out, that Hernandez’s criminal
record is, well, extensive. Several convictions involve, either directly or
indirectly, threats to bodily injury. Hernandez has not contested these facts.
But Hernandez also accepted guilt and subsequently cooperated with the
Government. Indeed, the Government asked the district court to apply a
downward departure for Hernandez’s cooperation, and the court did so. In any
event, we trust the district court will reconsider Hernandez’s lengthy criminal
history at resentencing.
       In the end, “we are not satisfied that there is [sufficient] evidence in the
record that shows that [Hernandez’s] sentence is ‘fair,’ or that the ‘integrity or
public reputation’ of the judicial proceeding was protected despite the
erroneous consideration” of his burglary conviction as a crime of violence. 30 The
district court rightly consulted the Guidelines, and then-applicable caselaw, to
determine Hernandez’s sentence. Yet perhaps the biggest lesson of the
Supreme Court’s decision in Molina-Martinez is that such reliance, when
anchored in an erroneous calculation and unaccompanied by alternative
reasoning from the sentencing court, is usually reason enough to remand. 31
Plus, we have held “that when a district court’s error clearly affects a
defendant’s sentence, that error seriously affects the fairness, integrity, or



       29 See, e.g., United States v. John, 597 F.3d 263, 286 (5th Cir. 2010) (“our analysis of
whether the sentencing error seriously affects the fairness, integrity, or public reputation of
judicial proceedings is influenced by the fact that the sentence imposed is significantly (21
months) outside the advisory Guidelines range after applying the” correct calculation);
United States v. Price, 516 F.3d 285, 289 (5th Cit. 2008) (finding discretion appropriate under
the fourth prong in part because “a 92–month sentence is substantially lower than a 110–
month sentence”).
       30 Escalante-Reyes, 689 F.3d at 425.
       31 See Molina-Martinez, 136 S. Ct. at 1345–47.

                                              9
    Case: 16-10084      Document: 00514450175        Page: 10     Date Filed: 04/27/2018



                                     No. 16-10084
public reputation of judicial proceedings, particularly when the disparity
between the Guidelines’ range applied by the district court and the correctly
calculated range is significant.” 32 This is such a case.
      We opt for remand given the significant sentencing disparity caused by
the calculation error, Hernandez’s willingness to cooperate with the
Government, the district court’s intimate reliance on the Guidelines and
related interpretive caselaw, and the absence of any indication “that the
district court thought the sentence it chose was appropriate irrespective of the
Guidelines range.” 33 These are measurable factors that allow us to assess the
fourth prong of plain-error review without usurping the district court’s
sentencing authority.
      It merits mention: Our decision to remand for resentencing does not
reflect a second-guessing of the district judge’s discretion, but rather reflects
our conclusion that the factors noted above justify allowing the judge to re-
evaluate Hernandez’s sentence in the light of intervening law. “Absent
remand, [Hernandez’s] sentence will be imposed without the district court’s
consideration of a lower Guidelines range, even though the Supreme Court has
said that district courts should consider the properly calculated Guidelines
range as ‘the starting point and the initial benchmark.’” 34 At resentencing, we
leave to the district court’s sound discretion whether Hernandez is subject to
enhancement under other provisions or whether to rely on the advisory
Guidelines at all. 35



      32  John, 597 F.3d at 285–86 (collecting cases).
      33  Molina-Martinez, 136 S. Ct. at 1346.
       34 John, 597 F.3d at 286 (citations omitted).
       35 See United States v. Calderon-Pena, 383 F.3d 254, 262 (5th Cir. 2004) (en banc)

(vacating a 16-level crime-of-violence enhancement and leaving it to the district court to
determine on remand whether the defendant’s prior conviction qualified for an eight-level
enhancement under the “aggravated felony” provisions of § 2L1.2).
                                           10
   Case: 16-10084    Document: 00514450175      Page: 11   Date Filed: 04/27/2018



                                 No. 16-10084
                                IV. CONCLUSION
      The plain-error hurdle may be high, but it is not insurmountable. We
VACATE the district court’s sentencing order and REMAND for resentencing
consistent with this opinion.




                                      11
