     Case: 15-40190         Document: 00513406438          Page: 1     Date Filed: 03/04/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                         No. 15-40190                                FILED
                                                                                 March 3, 2016
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                 Plaintiff - Appellee
v.

DAVID ALEJANDRO HERNANDEZ–BORJAS,

                 Defendant - Appellant


                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 7:14-CR-1485


Before       CLEMENT          and     HAYNES,         Circuit    Judges,      and        GARCIA
MARMOLEJO, District Judge.*
PER CURIAM:**
       David Alejandro Hernandez–Borjas pleaded guilty to illegal reentry in
violation of 8 U.S.C. § 1326 and appeals his 80-month sentence. Hernandez–
Borjas argues the district court erred by applying a 16-level crime of violence
enhancement based on his Texas conviction for burglary of a habitation. For
the following reasons, we AFFIRM Hernandez–Borjas’s sentence.




       *   District Judge of the Southern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-40190
                                            I.
      Hernandez–Borjas pleaded guilty to illegal reentry in violation of 8
U.S.C. § 1326. The Presentence Investigation Report (PSR) began with a base
offense level of 8 and calculated that Hernandez–Borjas was subject to a 16-
level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his
Texas conviction for burglary of a habitation.
      Hernandez–Borjas objected to the 16-level enhancement, arguing the
Government failed to prove that his second-degree felony burglary conviction
was a crime of violence.       The judgment of the conviction only listed
“BURGLARY OF HABITATION, A LESSER INCLUDED OFFENSE,” and
Texas Penal Code § 30.02(c)(2)—a penalty provision. According to Hernandez–
Borjas, although the indictment charged him with violating § 30.02(a)(1), the
judgment did not rule out the possibility that he was convicted under §
30.02(a)(3), which is not crime of violence.        The district court, however,
overruled the objections and agreed with the Government’s position that §
30.02(a)(3) cannot be a lesser-included offense of § 30.02(a)(1) because the two
have different elements.
      After a reduction for acceptance of responsibility, Hernandez–Borjas’s
total offense level was 21 and his criminal history was category IV, which
resulted in a guideline range of 77–96 months. The district court sentenced
Hernandez–Borjas within the Guidelines to 80 months of imprisonment.
Hernandez–Borjas now appeals, challenging the 16-level enhancement.
                                      II.
      Because the issue was preserved, we review de novo the district court’s
characterization of the prior offense as a crime of violence. See United States
v. Bonilla, 524 F.3d 647, 651–52 (5th Cir. 2008).




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                                  No. 15-40190
                                        III.
      The central issue on appeal is whether Hernandez–Borjas was convicted
of burglary of a habitation under § 30.02(a)(1). In relevant part, a defendant
violates § 30.02(a) if “the person: (1) enters a habitation . . . with intent to
commit a felony, theft, or an assault; or . . . (3) enters a . . . habitation and
commits or attempts to commit a felony, theft, or an assault.” Tex. Penal Code
§ 30.02(a). Although a conviction under § 30.02(a)(1) constitutes a generic
burglary and qualifies for a 16-level crime of violence enhancement, a
conviction under § 30.02(a)(3) does not. United States v. Conde–Castaneda,
753 F.3d 172, 176 (5th Cir. 2014).
      Texas Penal Code § 30.02(a) is a divisible statute, so to determine which
subsection of § 30.02(a) constituted Hernandez–Borjas’s conviction, we apply
the modified categorical approach. Conde–Castaneda, 753 F.3d at 176. Under
this approach, courts “look at so-called Shepard documents, which include the
charging document, written judicial confession, and judgment.” Id. (citing
United States v. Garcia–Arellano, 522 F.3d 477, 480–81 (5th Cir. 2008). While
the district court only had access to the judgment and indictment, the
supplemented record includes a document titled “WAIVER OF RIGHTS &
CONSENT TO STIPULATION OF EVIDENCE AND/OR TESTIMONY &
PLEA OF GUILTY OR NO CONTEST” (Guilty Plea) and Hernandez–Borjas’s
plea admonishments. See id. at 177 (“In reviewing an enhancement, this court
examines the record as supplemented on appeal.”).
      The judgment states that Hernandez–Borjas pleaded guilty to
“BURGLARY OF HABITATION, A LESSER INCLUDED OFFENSE,” and
indicates that he was convicted of a second-degree felony under § 30.02(c)(2).
Subsection (c)(2) is a penalty provision that merely establishes Hernandez–
Borjas violated § 30.02(a) by entering a habitation.          Tex. Penal Code §
30.02(c)(2) (“[A]n offense under this section is a . . . felony of the second degree
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                                       No. 15-40190
if committed in a habitation.”). Turning to the indictment, it alleges that
Hernandez–Borjas “did then and there, with intent to commit the felony
offense of Aggravated Assault, enter a habitation, without the effective consent
of [the owner].” Unlike the judgment, the indictment does not cite to any
particular subsection, but it does track the language and elements of §
30.02(a)(1). See Tex. Penal Code § 30.02(a)(1). Since Hernandez–Borjas’s
indictment matches § 30.02(a)(1), it is clear that Hernandez–Borjas was
charged under § 30.02(a)(1). 1 Thus, we must consider to what extent the
indictment may be used in this case to determine the offense of conviction.
                                                  IV.
       Hernandez–Borjas argues that because he did not plead guilty to the
crime charged in the indictment, it cannot be used to determine if his burglary
conviction was a crime of violence. That is, Hernandez–Borjas was indicted for
a first-degree felony—burglary of a habitation with intent to commit
aggravated assault—but the judgment reflects he instead pleaded guilty to a
second-degree       felony—“BURGLARY              OF    HABITATION,           A    LESSER
INCLUDED OFFENSE.” Accordingly, Hernandez–Borjas contends that his
conviction does not qualify as a crime of violence because he could have been
convicted under § 30.02(a)(3).
       In response, the Government argues that the indictment is relevant to
determine the manner of Hernandez–Borjas’s conviction in light of Texas law.



       1 When an indictment does not explicitly state a subsection, courts can rely on the
language used to ascertain the subsection charged. For example, in United States v. Wallace,
the court reviewed two burglary indictments with nearly identical language as Hernandez–
Borjas’s. 584 F. App’x 263, 265 (5th Cir. 2014) (per curiam). The first alleged that Wallace
“‘then and there, with intent to commit theft, intentionally and knowingly enter[ed] a
habitation, without the effective consent of [the owner] thereof[.]” Id. (emphasis removed)
(alteration in original). The second charged that Wallace “did then and there, with the intent
to commit theft, intentionally and knowingly enter a habitation, without the effective consent
of [the owner].” Id. (alteration in original). Both were deemed to be under § 30.02(a)(1). Id.
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                                No. 15-40190
See United States v. Martinez–Vega, 471 F.3d 559, 562–63 (5th Cir. 2006)
(affirming the district court’s use of the indictment to narrow the subsection
under which defendant pleaded guilty, where the defendant pleaded guilty to
“the lesser charge contained in the Indictment”). The Government asserts that,
because § 30.02(a)(1) and § 30.02(a)(3) require proof of different facts and
elements, according to Texas’s cognate-pleadings approach, burglary of a
habitation under § 30.02(a)(3) cannot be a lesser-included offense of §
30.02(a)(1). The Government explains that Hernandez–Borjas was charged
with and pleaded guilty to burglary of habitation under § 30.02(a)(1), and that
the difference between the judgment and the indictment relates to the penalty
provision only.   In other words, Texas law illustrates Hernandez–Borjas
necessarily pleaded guilty to the same § 30.02(a)(1) charge but with a lesser-
included punishment, which changed the degree of the offense from a first-
degree to a second-degree felony. We agree with the Government for the
following reasons.
      To start, the cases that Hernandez–Borjas primarily relies on to support
the contention that the indictment cannot be used to narrow his conviction are
distinguishable. In United States v. Turner, the court concluded that the
district court erred when the defendant pleaded guilty to a lesser-included
offense but applied a crime of violence enhancement based on the indictment,
emphasizing that the indictment was not relevant because the basis of the
enhancement must be “‘the conduct of which the defendant was convicted.’”
349 F.3d 833, 836 (5th Cir. 2003) (citing U.S.S.G. § 4B1.2). Unlike Turner,
here the indictment is relevant to determining what offense Hernandez–Borjas
was convicted under and is not being used to show the circumstances of the
conviction.
      In United States v. Gonzalez–Ramirez, the defendant was indicted for
aggravated kidnapping under two subsections of Tennessee’s kidnapping
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                                  No. 15-40190
statute but was ultimately convicted of only attempted kidnapping. 477 F.3d
310, 315 (5th Cir. 2007). This court stated the indictment could not be used to
determine whether the defendant committed a crime of violence because he
had never pleaded guilty to the indictment. Id. at 314. The court, however,
was not confronted with the situation where the indictment could be used to
show what subsection the defendant was actually convicted under.
      Likewise, in United States v. Neri–Hernandes, although the court agreed
with a general rule against using the indictment to determine which subsection
a defendant pleaded guilty to, the court recognized that Turner was based on
the reasoning that a district court should not “rely on the conduct set forth in
the indictment” when determining what statute an individual was convicted
under. 504 F.3d 587, 590 (5th Cir. 2007) (emphasis added). Notably, Neri–
Hernandes also recognizes that the implications of criminal documents are
viewed in light of their legal significance in the originating jurisdiction. See
id. at 591–93 (discussing the differences between an abstract of judgment
under California law and a certificate of disposition under New York law).
      Lastly, in United States v. Bonilla, the court held that the defendant’s
criminal information was unreliable to establish a crime of violence
enhancement when the certificate of disposition: (1) did not refer back to a
lesser offense in the information, and (2) did not provide the specific subsection
under which the defendant was convicted. 524 F.3d 647, 652–53 (5th Cir.
2008). Bonilla, however, must be understood in light of the statute and charge
it examined, which are significantly different from the one at issue in this case.
There the defendant had been charged with manslaughter, but the certificate
of disposition noted he pleaded guilty to attempted manslaughter. Id. at 651.
In contrast, Hernandez–Borjas’s judgment and Guilty Plea both explicitly
reference a lesser offense.


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                                  No. 15-40190
      The record in this case, viewed in light of the statute and Texas law, does
not raise the same issues as the cases above. Hernandez–Borjas’s record shows
he pleaded guilty to the lesser-included offense of the crime that he was
charged for, and our analysis reveals this could only refer to the penalty degree,
not the charge itself.
      This case is more analogous to United States v. Martinez–Vega because
the judgment, indictment, and Texas law definitively demonstrate that there
is only one lesser charge that Hernandez–Borjas could have pleaded guilty to.
471 F.3d. 559 (5th Cir. 2006).      The indictment in Martinez–Vega charged
defendant with first-degree sexual assault, but the judgment reflected a
conviction for second-degree sexual assault pursuant to a guilty plea to “the
lesser charge contained in the Indictment.” Id. at 562. In justifying its use of
the indictment to narrow the conviction, the court distinguished Turner by
emphasizing “the lesser charge” could only have one meaning. Id. at 563.
      Here, Hernandez–Borjas was indicted only under § 30.02(a)(1), which
could be subject to two different penalty provisions—§ 30.02(c)(2) (second-
degree felony), or § 30.02(d) (first-degree felony). The judgment states that he
pleaded guilty to “BURGLARY OF HABITATION, A LESSER INCLUDED
OFFENSE,” and indicates he was convicted of a § 30.02(c)(2) second-degree
felony. Just as in Martinez–Vega, the indictment is relevant to ascertain the
meaning of “the lesser included offense.”        The judgment provides that
Hernandez–Borjas pleaded guilty to a lesser-included offense.         And under
Texas law, there is only one possible lesser-included offense of a first-degree
burglary of a habitation under § 30.02(a)(1)—second-degree burglary of a
habitation. See, e.g., United States v. Herrera, 647 F.3d 172, 177 (5th Cir. 2011)
(considering Arkansas law to determine whether violations of certain
subsections were considered lesser-included offenses of rape).


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                                  No. 15-40190
      Specifically, in Texas, lesser-included offenses are defined by statute.
See Tex. Code Crim. Proc. art. 37.09. Texas law provides an offense “will be a
lesser-included offense where it is established by proof of the same or less than
all the facts required to establish the commission of the offense charged.” State
v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013) (internal quotations
omitted).   Thus, if a greater offense can be committed in more than one
manner, “the manner alleged will determine the availability of lesser-included
offenses.” Hall v. State, 225 S.W.3d 524, 531, 535 (Tex. Crim. App. 2007). The
legal elements set forth in Hernandez–Borjas’s indictment alleged that he
committed burglary of a habitation by entering a habitation, without consent,
with the intent to commit the felony offense of aggravated assault. Subsection
(a)(1) requires the element of intent, an element not required by subsection
(a)(3). Likewise, subsection (a)(3) requires the element of an attempted or
actual commission of an offense, an element not required by subsection (a)(1).
Therefore, neither can be a lesser-included offense of the other. See, e.g.,
Guzman v. State, No. 2–05–096–CR, 2006 WL 743431, at *5 (Tex. App.—Fort
Worth Mar. 23, 2006, no pet.) (mem. op., not designated for publication)
(holding that “the offense of burglary as described in section 30.02(a)(1) is not
a lesser included offense of the offense of burglary as described in section
30.02(a)(3) . . . .”); see also Warren v. State, No. 05–12–00916–CR, 2013 WL
3717802, at *3–4 (Tex. App.—Dallas July 12, 2013, no pet.) (mem. op., not
designated for publication) (finding error where a defendant charged under §
30.02(a)(3) received a lesser-included offense jury instruction for burglary
under § 30.02(a)(1)); Bui v. State, 964 S.W.2d 335, 346 (Tex. App.—Texarkana
1998, pet. ref’d) (same).
      Accordingly, the state law controlling Hernandez–Borjas’s conviction
convincingly clarifies that the characterization in the judgment as “lesser
included” could refer only to the degree of the penalty and not the charge itself.
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                                No. 15-40190
In light of this context, which we recognize may apply only in narrow
circumstances, we find Hernandez–Borjas was charged and pleaded guilty
under § 30.02(a)(1), and therefore, the crime of violence enhancement applies.
See United States v. Conde–Castaneda, 753 F.3d 172, 176 (5th Cir. 2014).
                                          V.
      In conclusion, our review of the charge in the indictment, the two
relevant statutory provisions, the record, and the law governing the
jurisdiction where the judgment issued shows that Hernandez–Borjas pleaded
guilty to burglary of a habitation under § 30.02(a)(1), a crime of violence.
Accordingly, we AFFIRM Hernandez–Borjas’s sentence.




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