     Case: 13-10590   Document: 00512643651      Page: 1   Date Filed: 05/28/2014




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


                                 No. 13-10590
                                                                          FILED
                                                                      May 28, 2014
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

                                            Plaintiff - Appellee
v.

SAMUEL CONDE-CASTANEDA,

                                            Defendant - Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
E. GRADY JOLLY, Circuit Judge
      Samuel Conde-Castaneda appeals his sentence, which was enhanced
based on his previous conviction in Texas state court for burglary under Texas
Penal Code § 30.02(a)(1) and (a)(3). The question presented is whether this
predicate offense constitutes a “burglary of a dwelling” under the Sentencing
Guidelines and is therefore a crime of violence. We hold that it does, and it is.
We also hold that Conde’s written Texas “boiler plate” judicial confession, in
which he confessed to “each and every act alleged” in the indictment, is
sufficient to establish that his prior conviction rested on every offense the
indictment charged.
                                       I.
      Conde is a Mexican citizen who had been deported in 2007 and 2011. He
was arrested again and convicted in 2012 for illegal reentry. At the sentencing
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                                  No. 13-10590

for this offense, 16 levels were added to Conde’s offense level because he had
previously committed a felony “crime of violence.”          See U.S. SENTENCING
GUIDELINES MANUAL (“USSG”) § 2L1.2(b)(1)(A)(ii) (2013). This enhancement
was based on Conde’s 2009 Texas conviction for burglary. According to the
PSR before the district judge, the judgment for this predicate offense was
attached thereto. Conde did not object to the enhancement.
      With the 16-level crime of violence enhancement, Conde’s final offense
level rose to 21. The judge imposed a 57-month prison term, which was at the
top of the Guidelines range, plus two years of supervised release.
      Conde now appeals his sentence. He argues that the burglary conviction
supporting his crime of violence enhancement did not qualify as a “crime of
violence” under the Sentencing Guidelines.
                                        II.
      Conde challenges his enhancement for the first time on appeal. We
consequently review the enhancement for plain error.            “[R]eversal is not
required unless there is (1) an error; (2) that is clear or obvious; and (3) that
affects the defendant’s substantial rights.” United States v. Bishop, 603 F.3d
279, 280 (5th Cir. 2010). Even if all these conditions are fulfilled, the appellate
court will only reverse if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Puckett v. United States, 556 U.S.
129, 135 (2009) (internal quotation marks omitted).
      Conde was convicted under parts (1) and (3) of the following Texas
statute:
      A person commits an offense if, without the effective consent of the
      owner, the person:
      (1) enters a habitation . . . not then open to the public, with intent
      to commit a felony. . . or
      (2) remains concealed, with intent to commit a felony . . . in a . . .
      habitation; or
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       (3) enters a . . . habitation and commits or attempts to commit a
       felony . . . .
Tex. Penal Code § 30.02(a).
       The first question raised is whether the court can consult outside
documents to determine whether Conde’s prior burglary conviction constitutes
a “crime of violence” under the Sentencing Guidelines. USSG § 2L1.2(b)(1). 1
We hold that we can.
       Under the Sentencing Guidelines, “crime of violence” convictions include
state convictions for “burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii).
There are two ways we can determine whether Conde’s predicate offense
qualifies as a “burglary of a dwelling,” and consequently a “crime of violence.” 2
       One is to look only to the elements of Conde’s predicate offense. If §
30.02(a)’s elements are the same as or narrower than those of the generic
offense of burglary of a dwelling, Conde’s predicate offense qualifies as a “crime
of violence.” See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 3 The
Supreme Court has called this test the categorical approach, as the test looks
to the category of conduct the statute criminalizes rather than the facts
underlying the defendant’s predicate offense.




       1 USSG § 2L1.2(b) requires a 16-level enhancement if (a) the defendant was deported,
or unlawfully remained in the United States, (b) after “a conviction of a felony that is . . . a
crime of violence;” (c) “if the conviction receives criminal history points under Chapter Four.”
On appeal, the parties dispute only the “crime of violence” prong.
       2 The USSG also defines “crime of violence” as “any other offense . . . that has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” USSG § 2L1.2 cmt. n.1(B)(iii). Tex. Penal Code § 30.02(a), however, does not
necessarily require physical force and consequently does not fall within the “crime of violence”
residual clause. See United States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002).
       3 Although Descamps involved the Armed Career Criminal Act (“ACCA”), the Fifth
Circuit has drawn heavily on ACCA cases in its Sentencing Guidelines jurisprudence. See,
e.g., United States v. Rodriguez, 711 F.3d 541, 553 (5th Cir. 2013) (en banc).
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      The second way to determine whether Conde’s prior conviction qualifies
as a “burglary of a dwelling” under the Sentencing Guidelines is to look beyond
the elements of the statute to a limited set of documents. Under this test,
called the modified categorical approach, the court can look at so-called
Shepard documents, which include the charging document, written judicial
confession, and judgment. United States v. Garcia-Arellano, 522 F.3d 477,
480–81 (5th Cir. 2008). The categorical approach is the default test. Cf.
Descamps, 133 S. Ct. at 2281. The modified categorical approach, however,
applies when the defendant’s predicate offense was violating a statute
containing divisible crimes. That is, the defendant’s predicate offense involves
a statute that
      sets out one or more elements of the offense in the alternative —
      for example, stating that burglary involves entry into a building or
      an automobile. If one alternative (say, a building) matches an
      element in the generic offense, but the other (say, an automobile)
      does not, the modified categorical approach permits sentencing
      courts to consult a limited class of documents . . . to determine
      which alternative formed the basis of the defendant’s prior
      conviction.
Descamps, 133 S. Ct. at 2281.
      We hold that the modified categorical approach applies here, meaning
that we will consult Shepard documents to determine which of the three
alternatives of Texas Penal Code § 30.02(a) forms the basis of Conde’s
conviction. This test applies because § 30.02(a) is a divisible statute – “one
alternative . . . matches an element in the generic offense [of burglary of a
dwelling], but the other . . . does not.” Descamps, 133 S. Ct. at 2281. The
generic offense of burglary of a dwelling requires entering a habitation with
the intent to commit a crime. See United States v. Constante, 544 F.3d 584,
587 (5th Cir. 2008). Because § 30.02(a)(1) expressly requires this intent, we

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have held that a prior conviction for violating that section is a “burglary of a
dwelling” under the Sentencing Guidelines. United States v. Garcia-Mendez,
420 F.3d 454, 456–57 (5th Cir. 2005). By contrast, § 30.02(a)(3) lacks such an
intent requirement and consequently does not qualify as a “burglary of a
dwelling.” Constante, 544 F.3d at 587.
      Three unpublished Fifth Circuit opinions agreed that the modified
categorical test applies to § 30.02(a) predicates. See United States v. Cervantes-
Aguilar, 463 F. App’x 256, 258 (5th Cir. 2012); United States v. Valdes, 403 F.
App’x 885, 892–94 (5th Cir. 2010); United States v. Chapman, 431 F. App’x
337, 338 (5th Cir. 2011).
      Conde would have us apply the categorical approach rather than the
modified categorical approach. He relies on Chambers v. United States, 555
U.S. 122 (2009). In that case, Chambers had a prior conviction for violating a
statue that criminalized, in a single subsection, both escape and failure to
report. At issue was whether this conviction constituted a violent felony and
thus triggered a mandatory minimum 15-year sentence. Id. at 124. Chambers
held that, although escape and failure to report were grouped together in the
same statutory subsection, the two should be considered separate offenses for
the purposes of the categorical approach test. Id. at 126-27.
      Chambers also stated that some failure to report offenses should be
grouped together when conducting the categorical approach test. Id. at 127.
The Chambers predicate offense involved “fail[ing] to report to a penal
institution or to report for periodic imprisonment at any time or knowingly
fail[ing] to return from furlough or from work.” Id. at 130. The Court grouped
these failure to report offenses together. Id. at 127.
      To Conde, Chambers stands for a rule that if two subsections of a statute
amount to “variations on a single theme,” the court should apply the

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categorical approach, even if one subsection qualifies for an enhancement and
another does not. Cf. id. Conde maintains that § 30.02(a)(1) and § 30.02(a)(3)
should be grouped together and analyzed under the categorical approach.
Essentially, Conde asserts that Chambers substantially limits the modified
categorical approach in favor of the categorical approach.
      We reject Conde’s argument as having no basis in authority. Chambers
concerns itself wholly with how to apply the categorical approach. See id. at
124–27. The opinion is not about choosing whether the categorical or modified
categorical approach applies, which is how Conde reads it. Indeed, Chambers
makes no mention of the modified categorical approach at all. That Conde cites
no cases supporting his reading of Chambers further indicates that his reading
is unfounded.
      Moreover, Descamps, decided after Chambers, discusses the modified
categorical approach in-depth and does not in any way support the rule Conde
proposes. To the contrary, Descamps reiterated that the modified categorical
approach should apply when one alternative of a statute “matche[d] an element
in the generic offense, but the other . . . [did] not.” Descamps, 133 S. Ct. at
2281. As we stated earlier, this is exactly the case with § 30.02(a)(1) and §
30.02(a)(3).
      Consequently, we follow the clear rules set out in Descamps and hold
that the modified categorical approach applies here.
                                     III.
      We now apply the modified categorical approach to this appeal.
      Conde first argues that the district court relied solely on the PSR to
determine the conduct of the defendant’s prior conviction. Sole reliance on the
PSR is error, United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005),
because the PSR is not within the limited class of Shepard documents the court

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may consult, as it is not a “conclusive record[] made or used in adjudicating
guilt” in the defendant’s prior conviction. Id.
      We reject as factually incorrect Conde’s argument that the district court
relied solely on the PSR. As Conde’s reply brief concedes, the district court
relied on the judgment from Conde’s prior conviction at sentencing.
      Conde next argues that the record does not show that his predicate
offense constituted a “crime of violence.”
      In reviewing an enhancement, this court examines the record as
supplemented on appeal. The question is whether there is error at the time of
appellate consideration rather than at the time of trial. Garcia-Arellano, 522
F.3d at 480. The supplemented record contains Conde’s indictment, judgment,
and written judicial confession. The indictment and judgment are unhelpful
in determining which portion of § 30.02(a) formed the basis of Conde’s
predicate offense. Conde’s indictment establishes that Conde was charged
with violating § 30.02(a)(1) and § 30.02(a)(3), but obviously cannot by itself
establish the ultimate basis for his conviction. Moreover, Conde’s judgment
establishes that Conde violated § 30.02(a) but does not establish which
subsection. The judgment listed the statute violated as § 30.02(c)(2), which
indicates only that Conde violated § 30.02(a), and did so by entering a
habitation.
      Consequently, the written judicial confession is the key document in
determining what part of § 30.02(a) Conde violated.             Conde’s judicial
confession, contained in his plea admonishment, states “I have read the
Indictment . . . and I committed each and every act alleged therein . . . .” The
confession is a pre-printed template under which Conde signed his name. At
issue is whether this template confession sufficiently establishes that Conde
was convicted of § 30.02(a)(1). We hold that it does.

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      In Garcia-Arellano, a template confession sufficed to establish which
offenses a conviction indicated.    Garcia-Arellano involved a predicate to
“deliver” narcotics that included both conduct sufficient (transferring cocaine)
and insufficient (offering to sell cocaine) for an enhancement.         Garcia’s
template confession stated that he did “knowingly . . . actually transfer,
constructively transfer and offer to sell” cocaine, and that he “committed the
offense with which [he stood] charged exactly as alleged in the indictment.”
522 F.3d at 481. Garcia-Arellano relied on the confession in holding that the
enhancement applied. Several unpublished opinions have applied Garcia-
Arellano to indictments involving § 30.02(a)(1) and § 30.02(a)(3), finding that
template confessions supported enhancements. Valdes, 403 F. App’x at 892–
94; Chapman, 431 F. App’x at 338; Cervantes-Aguilar, 463 F. App’x at 258.
      Conde, however, counters with United States v. Espinoza, 733 F.3d 568
(5th Cir. 2013). The predicate offense at issue in Espinoza was an assault
fulfilled by intentionally, knowingly or recklessly causing bodily injury to
another. Intentional and knowing assaults probably qualified as a crime of
violence, but it was previously unclear if reckless assaults did as well.
Espinoza stated in his confession that he “admit[ted] all of the allegations in
the indictment,” which in turn had accused him of “intentionally, knowingly,
and recklessly” assaulting his wife. Id. at 571–72. The court held that the
“adoption of the judicial confession [was] simply a blanket statement admitting
that [Espinoza] committed the assault with every listed category of mental
culpability” and did not conclusively prove mens rea. Id. at 572. Consequently,
the court applied a “least culpable means” analysis, assuming that Espinoza’s
offense was committed recklessly.
      Conde argues that Espinoza applies here, not Garcia-Arellano.           In
Conde’s view, Espinoza promulgates a rule that pleading guilty in a template

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confession does not establish which of the alternate versions of a crime you
have pleaded guilty to, for the purpose of the Sentencing Guidelines.
      We reject Conde’s argument.      Espinoza cannot overturn the earlier
decided case of Garcia-Arellano. To the extent that the holding of Espinoza is
inconsistent with Garcia-Arellano, Garcia-Arellano controls. See Lowrey v.
Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (“[P]anel decisions
may be overruled only by a subsequent decision of the Supreme Court or by
the Fifth Circuit sitting en banc.”). Espinoza cited no authority when it stated
that the judicial confession failed to support the enhancement. See 733 F.3d
at 572. Espinoza’s scant reasoning indicates either that the case is a true
outlier in our caselaw, that its pronouncement was dicta, or both.
      Applying Garcia-Arellano, Conde’s judicial confession adequately
established that he was convicted of violating all the offenses listed in the
indictment, including § 30.02(a)(1).        We have previously found that §
30.02(a)(1) constitutes “burglary of a dwelling” under the Sentencing
Guidelines.   Garcia-Mendez, 420 F.3d at 456–57.           Consequently, Conde’s
judicial confession establishes that his crime of violence sentencing
enhancement was correctly imposed.
                                      IV.
      For the foregoing reasons, the district court’s judgment is
                                                                     AFFIRMED.




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