     Case: 11-50895       Document: 00512057640         Page: 1     Date Filed: 11/19/2012




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

                                                                            FILED
                                                                        November 19, 2012
                                       No. 11-50895
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

v.

ARLEX DARINEL AVILA, also known as Arlex Darinel Lobo-Avila,

                                                   Defendant - Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1571-1


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Arlex Darinel Avila (“Avila”) appeals his forty-eight month sentence
pursuant to his illegal reentry conviction and argues that he should not have
received a “crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on his prior Oklahoma conviction for second-degree burglary.                        We
VACATE and REMAND for re-sentencing.
                                              I.
       Avila pleaded guilty to a single-count indictment for illegal reentry in


       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Rule
47.5.4.
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violation of 8 U.S.C. § 1326(a). The Pre-Sentence Investigation Report (PSR)
recommended increasing Avila’s base offense level of eight by sixteen levels,
pursuant to § 2L1.2(b)(1)(A)(ii), on the grounds that his 2007 conviction for
second-degree burglary in violation of Okla. Stat. tit. 21, § 1435 was a “crime of
violence.” Avila’s resulting advisory Sentencing Guidelines range was forty-one
to fifty-one months.1 Avila did not object to the PSR, and he requested a
sentence at the bottom of the recommended Guidelines range. The district court
sentenced Avila within the Guidelines range to imprisonment for forty-eight
months and three years of supervised release. Without the enhancement, Avila’s
advisory Guidelines range would have been fifteen to twenty-one months.2 Avila
now argues that his prior Oklahoma conviction for second-degree burglary did
not support the enhancement.
                                             II.
       Because Avila failed to object to the enhancement, we review for plain
error only. See Fed. R. Crim. P. 52(b); see also United States v. Villegas, 404 F.3d
355, 358 (5th Cir. 2005). Under plain-error review, this court must determine
whether: (1) there was error, (2) the error was plain, (3) the error affects a
defendant’s substantial rights, and (4) the court should exercise its discretion to
correct the error in order to prevent a miscarriage of justice. United States v.
Olano, 507 U.S. 725, 732 (1993); Villegas, 404 F.3d at 358-59. We address each
prong in turn.
       We must first decide whether Avila’s prior Oklahoma conviction for
second-degree burglary constitutes a crime of violence pursuant to

       1
         The PSR placed Avila in criminal history category II. The PSR also recommended
a three-level reduction for acceptance of responsibility, resulting in a total offense level of
twenty-one.
       2
          For the illegal reentry offense, Avila’s base offense level was eight. His Oklahoma
conviction, properly assessed, would have triggered an eight-level aggravated felony increase
under § 2L1.2(b)(1)(C). Subtracting three offense levels for acceptance of responsibility, Avila’s
total offense level would have been thirteen. Combined with his criminal history category of
II, this would have resulted in an advisory Guidelines range of fifteen to twenty-one months.

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                                 No. 11-50895

§ 2L1.2(b)(1)(A)(ii).   Section 2L1.2(b)(1)(A)(ii) provides for a sixteen-level
enhancement of a defendant’s base offense level if he was previously deported
or unlawfully remained in the United States after “a conviction for a felony that
is a crime of violence.” § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines
“crime of violence” to include: (1) certain enumerated offenses, including
“burglary of a dwelling,” or (2) offenses that have “as an element the use,
attempted use, or threatened use of physical force against the person of
another.” § 2L1.2, cmt. n.1(B)(iii). At issue here is whether the offense of
second-degree burglary described in Okla. Stat. tit. 21, § 1435 qualifies as a
“burglary of a dwelling” under § 2L1.2.
      To determine whether a specific offense constitutes one of the enumerated
offenses under § 2L1.2, “this court employs ‘a common sense approach’ based on
the ‘generic, contemporary meaning’ of the terms used in the Guidelines.”
United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (quoting
United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008)). Under this
common-sense approach, burglary is the “unlawful or unprivileged entry into,
or remaining in, a building or other structure, with the intent to commit a
crime.” United States v. Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007).
A “dwelling” for the purposes of § 2L1.2 is defined as “any structure, including
a tent or vessel, that is used for human habitation.” United States v. Castillo-
Morales, 507 F.3d 873, 875 (5th Cir. 2007).
      Next, we compare these common-sense definitions with the language of the
statute under which Avila was convicted. United States v. Fierro-Reyna, 466
F.3d 324, 327 (5th Cir. 2006). This analysis is grounded in the statute of
conviction rather than the defendant’s specific conduct. See United States v.
Munoz-Ortenza, 563 F.3d 112, 114 (5th Cir. 2009). With respect to second-
degree burglary, Oklahoma law provides:




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      Every person who breaks and enters any building or any part of any
      building, room, booth, tent, railroad car, automobile, truck, trailer,
      vessel or other structure or erection, in which any property is kept,
      or breaks into or forcibly opens, any coin-operated or vending
      machine or device with intent to steal any property therein or to
      commit any felony, is guilty of burglary in the second degree.
Okla. Stat. tit. 21, § 1435.    Because some of the structures listed in the
Oklahoma statute are not used for human habitation, the statute alone does not
render Avila’s burglary conviction a “crime of violence” under § 2L1.2. See
United States v. Gomez-Guerra, 485 F.3d 301, 304 (5th Cir. 2007) (holding that
a defendant’s prior conviction for burglary under Florida law was not a “crime
of violence” under § 2L1.2 because the language of the Florida statute included
curtilage around a structure, which “is not the dwelling itself”).
      This analysis, however, does not end our inquiry. When a statute of
conviction is overly broad and contains a series of disjunctive elements, “we may
also 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). The specific records that we may consider
under this modified-categorical approach are generally limited to the “charging
document, written plea agreement, transcript of the plea colloquy, and any
explicit factual findings by the trial judge to which the defendant assented.”
United States v. Najera-Mendoza, 683 F.3d 627, 629 (5th Cir. 2012) (internal
citation and quotation marks omitted). We may consider these records for the
limited purpose of ascertaining which of the disjunctive elements in a statute
formed the basis for conviction. See United States v. Miranda-Ortegon, 670 F.3d
661, 663 (5th Cir. 2012).
      In the instant case, the disjunctive elements included in the Oklahoma
second-degree burglary statute are “any building or any part of any building,
room, booth, tent, railroad car, automobile, truck, trailer, vessel or other




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structure or erection, in which any property is kept, or breaks into or forcibly
opens, any coin-operated or vending machine or device . . . .” Okla. Stat. tit., 21
§ 1435. The statute does not include “dwelling” as a disjunctive element. The
government asserts that this does not end the analysis, and argues that it may
use the undisputed fact in Avila’s indictment that he burglarized “a certain
residence” to narrow the “any building” element of the Oklahoma statute to fit
the definition of “dwelling” under § 2L1.2. Avila counters that we may consider
that fact for the limited purpose of determining whether his conviction was
based on the “any building” disjunctive element, as opposed to the other
disjunctive elements, but not to narrow the plain meaning of the “any building”
disjunctive element.
      Our precedent supports Avila’s position that the modified-categorical
approach prevents us from reading into the statute a “dwelling” element that it
does not contain. In at least two prior cases, we declined to use facts in the
indictment to narrow the plain meaning of an element in a criminal statute to
fit the meaning of “burglary of a dwelling” under § 2L1.2. For example, in
Ortega-Gonzaga, this court examined a California burglary statute that
prohibited entry into various dwellings and non-dwellings with intent to commit
larceny or any felony. 490 F.3d at 394 (citing Cal. Penal Code § 459). We held
that the defendant’s conviction did not qualify as a “burglary of a dwelling”
under § 2L1.2 because the California burglary statute did not require “unlawful
or unprivileged” entry, which the Supreme Court previously held was a requisite
element of “burglary” under its “generic, contemporary meaning.” Id. (quoting
Taylor v. United States, 495 U.S. 575, 598 (1990)). We declined to rely on the
facts of the indictment to narrow the breadth of the “entry” element to “unlawful
and unprivileged” entry. Id. at 395-96 & n.5. In United States v. Gonzalez-
Terrazas, 529 F.3d 293, 296-97 (5th Cir. 2008), this court followed Ortega-
Gonzaga and again declined to rely on facts of an indictment to narrow the



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                                       No. 11-50895

elements of the California burglary statute to fit within the definition of
“burglary of a dwelling” under § 2L1.2.
       Simply put, Oklahoma’s second-degree burglary statute does not include
a “dwelling” element.3 Accordingly, our precedent prevents us from considering
facts in Avila’s Oklahoma indictment to establish that his prior conviction
constituted “burglary of a dwelling” under § 2L1.2. Therefore, we conclude that
it was error to apply the sixteen-level crime-of-violence enhancement to Avila’s
prior Oklahoma conviction for second-degree burglary.
       Turning to the second prong of the plain error analysis, we must
determine whether the error was plain. We conclude that the error was plain
because the Oklahoma second-degree burglary statute lacked the requisite
“dwelling” element to constitute a “crime of violence” under the Guidelines. See
Gonzalez-Terrazas, 529 F.3d at 298 (holding that it was plain error to
characterize a defendant’s prior California conviction of residential burglary as
a crime of violence because the statute lacked the requisite “unlawful entry”
element); see also United States v. Insaulgarat, 378 F.3d 456, 471 (5th Cir. 2004)
(holding that it was plain error to characterize a defendant’s prior Florida
conviction for aggravated stalking as a “crime of violence” because the offense
lacked the requisite “physical force” element); United States v. Gracia-Cantu,
302 F.3d 308, 313 (5th Cir. 2002) (holding that it was plain error to characterize
a defendant’s prior Texas conviction for injury to a child as a “crime of violence”
because the offense lacked the requisite element of intentional use of force).
       Under the third prong of plain-error review, we must determine whether
the error affected Avila’s substantial rights. Avila has satisfied this prong
because there is “a reasonable probability that, but for the district court’s error,

       3
          In two prior cases, this court has considered a defendant’s indictment for the limited
purpose of determining whether a disjunctive “dwelling” element in a criminal statute was the
basis of a conviction. See, e.g., Castillo-Morales, 507 F.3d at 875; Murillo-Lopez, 444. F.3d at
340. Those cases are distinguishable from the instant case because the criminal statute at
issue here does not include a disjunctive “dwelling” element.

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                                  No. 11-50895

[he] would have received a lower sentence.” United States v. Davis, 602 F.3d
643, 647 (5th Cir. 2010). “Our precedent is clear that absent additional evidence,
a defendant has shown a reasonable probability that he would have received a
lesser sentence when (1) the district court mistakenly calculates the wrong
Guidelines range, (2) the incorrect range is significantly higher than the true
Guidelines range, and (3) the defendant is sentenced within the incorrect range.”
United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). Here, the
application of the crime-of-violence enhancement resulted in an advisory
Guidelines range of forty-one to fifty-one months. Without the crime-of-violence
enhancement, the range would have been fifteen to twenty-one months. The
district court sentenced Avila to forty-eight months, which is more than twice
the maximum sentence under the correct Guidelines range. Therefore, the error
affected Avila’s substantial rights. See Gonzalez-Terrazas, 529 F.3d at 298-99
(holding that a defendant’s substantial rights were affected when the defendant
received a sentence of fifty-seven months based on an erroneously calculated
Guidelines range of fifty-seven to seventy-one months, and absent plain error,
the defendant’s Guidelines range would have been twenty-four to thirty months);
see also United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (holding
that a defendant’s substantial rights were affected when the defendant received
a sentence of seventy-seven months based on an erroneously calculated
Guidelines range of seventy-seven to ninety-six months, and, absent plain error,
the defendant’s Guidelines range would have been thirty-three to forty-one
months); Villegas, 404 F.3d at 364 (holding that a defendant’s substantial rights
were affected when the defendant received a sentence of twenty-one months
based on an erroneously calculated Guidelines range of twenty-one to twenty-
seven months, and absent plain error, the defendant’s Guidelines range would
have been ten to sixteen months).
      The fourth prong of plain-error review asks whether the error affects “the
fairness, integrity, or public reputation of judicial proceedings” such that this

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                                  No. 11-50895

court should exercise its discretion to correct the error to prevent a miscarriage
of justice. Puckett v. United States, 556 U.S. 129, 135 (2009) (internal citation
and quotation marks omitted). Our precedent prevents us from viewing this
fourth prong as automatically satisfied, and thus requiring a correction of the
error, when the first three prongs of plain-error review are met. “[E]ven if an
increase in a sentence [can] be seen as inevitably ‘substantial’ in one sense[,] it
does not inevitably affect the fairness, integrity, or public reputation of judicial
process and proceedings.” United States v. Ellis, 564 F.3d 370, 378-79 (5th Cir.
2009).
      Under this case-by-case approach, we conclude that the error in this case
warrants the exercise of our discretion. The government offers no argument on
prong four. As explained above, the error clearly affected Avila’s sentence
because it resulted in a non-overlapping Guidelines range and the imposition of
a sentence that is more than twice the maximum permitted under the correct
Guidelines range. Here there is a “substantial disparity between the imposed
sentence and the applicable Guidelines range [that] warrants exercise of our
discretion.” Mudekunye, 646 F.3d at 291. This case is similar to prior cases in
which we have exercised our discretion under the fourth prong of plain-error
review. See, e.g., Gonzalez-Terrazas, 529 F.3d at 299 (exercising discretion to
correct a plain error in applying the crime-of-violence enhancement to a burglary
conviction under the Guidelines when the error yielded two non-overlapping
Guidelines ranges and a sentence almost twice the maximum under the correct
Guidelines range); see also, e.g., United States v. Gonzales, 484 F.3d 712, 716
(5th Cir. 2007) (exercising discretion to correct a plain error in applying the
crime-of-violence enhancement under the Guidelines when the error yielded two
non-overlapping Guidelines ranges and a sentence more than twice the
maximum under the correct Guidelines range); Garza-Lopez, 410 F.3d at 275
(concluding that a plain error affected the “fairness of the judicial proceedings”
when it “resulted in the imposition of a sentence that was substantially greater

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than would otherwise have been permitted under the Sentencing Guidelines”);
Villegas, 404 F.3d at 365 (exercising discretion to correct a plain error that
resulted in two non-overlapping Guidelines ranges and a sentence greater than
the maximum sentence under the correct Guidelines range). Accordingly, we
find prong four satisfied here.
                                      III.
      For the foregoing reasons, we conclude that the application of the sixteen-
level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) to Avila’s prior Oklahoma
conviction for second-degree burglary was reversible plain error. Accordingly,
Avila’s sentence is VACATED and the case is REMANDED for re-sentencing.




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