     Case: 10-41263     Document: 00511665035         Page: 1     Date Filed: 11/14/2011




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

                                                                            FILED
                                                                        November 14, 2011

                                       No. 10-41263                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

v.

MARIO ALBERTO SOLORZANO,

                                           Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                                USDC 2:10-CR-711


Before SMITH, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
        Mario Alberto Solorzano appeals a fifty-one month sentence imposed after
he pleaded guilty to illegally reentering the United States in violation of 8 U.S.C.
§ 1326. Solorzano argues that the district court committed plain error by
characterizing prior convictions for second-degree burglary under California
Penal Code §§ 459 and 460 as aggravated felonies under § 2L1.2(b)(1)(C) of the
United States Sentencing Guidelines. For the following reasons, we AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41263       Document: 00511665035          Page: 2     Date Filed: 11/14/2011



                                       No. 10-41263

       Solorzano pleaded guilty to being unlawfully present in the United States
after his deportation. At sentencing, the district court treated Solorzano’s prior
convictions for second-degree burglary under California law as aggravated
felonies receiving an eight-level enhancement. See U.S.S.G. § 2L1.2(b)(1)(C).
This led to a total offense level of thirteen with an imprisonment range of 33 to
41 months.1 The district court then made an upward departure of two offense
levels—for a total offense level of fifteen with an imprisonment range up to 51
months—because the applicable Guideline range underrepresented the
seriousness of the defendant’s criminal convictions and prior criminal activity.
Finally, the district court sentenced Solorzano to 51 months, the top of the
adjusted imprisonment range.
       Solorzano acknowledges he did not object to the aggravated felony
enhancement and that our review is for plain error. Plain error requires: (1)
error; (2) that is clear or obvious; (3) that affects substantial rights; and (4) if
those elements are satisfied, the court of appeals may exercise its discretion to
remedy the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
       The aggravated felony enhancement was clear error. To be an aggravated
felony, the California second-degree burglary convictions must fall under the
federal classification of a “burglary offense” in 8 U.S.C. § 1101(a)(43)(G).2 We


       1
        As described below, the district court should not have treated the second-degree
burglary convictions as aggravated felonies. Thus, the correct advisory range should have
been 24 to 30 months.
       2
         The term aggravated felony under § 2L1.2(b)(1)(C) has the same meaning as it does
in § 1101(a)(43). United States v. Echeverria-Gomez, 627 F.3d 971, 974 (5th Cir. 2010).
Moreover, the government does not argue that California’s second-degree burglary constitutes
an aggravated felony as a crime of violence under 8 U.S.C. § 1101(a)(43)(F). See also id. at 976
(observing the distinction between first and second-degree burglary as the former is more
likely to result in violence and injury).

                                               2
   Case: 10-41263       Document: 00511665035         Page: 3     Date Filed: 11/14/2011



                                       No. 10-41263

have already held that “the term ‘burglary’ does not carry the same meaning in
California Penal Code §§ 459 and 460(a) that it carries in [§ 1101(a)(43)(G)].”
United States v. Echeverria-Gomez, 627 F.3d 971, 974 n.9 (5th Cir. 2010); see
also United States v. Gonzalez-Terrazas, 529 F.3d 293, 297 (5th Cir. 2008).
Unlike the federal statute, burglary under the California code “does not include
as an element an unlawful or unprivileged entry into a structure.” Echeverria-
Gomez, 627 F.3d at 977. Nevertheless, the government argues that Solorzano’s
actual crime satisfies the definition in § 1101(a)(43)(G) if we employ a modified
categorical approach because the California charging instrument underlying one
of his convictions alleged that he “did unlawfully enter” the building.3 We have
also rejected this same argument under the same California statute. See
Gonzalez-Terrazas, 529 F.3d at 298 (“[T]he modified categorical approach, as
applied by this circuit, does not apply to the ‘entry’ element of California Penal
Code § 459.”). Therefore, we hold as we must that Solorzano’s prior convictions
are not aggravated felonies under § 2L1.2(b)(1)(C) of the Guidelines, and the
district court clearly erred.
       Nevertheless, the error does not satisfy the rigor of plain error review.4
First, it is unclear that the error affected Solorzano’s substantial rights. “A
sentencing error affects a defendant’s substantial rights if he can show a
reasonable probability that, but for the district court’s misapplication of the
Guidelines, he would have received a lesser sentence.” United States v. John,
597 F.3d 263, 284–85 (5th Cir. 2010) (quoting United States v. Price, 516 F.3d


       3
        The government acknowledges that Solorzano’s other burglary conviction, which did
not result from a charging instrument alleging unlawful entry, does not satisfy the definition
of burglary in § 1101(a)(43)(G).
       4
        The government concedes that if the enhancement were erroneous, this court should
vacate and remand. Our duty, however, is to apply all four prongs of the plain error analysis.
See U.S. v. Hope, 545 F.3d 293, 295 (5th Cir. 2008) (“We are not bound by the Government’s
concession of error and give the issue independent review.”).

                                              3
   Case: 10-41263    Document: 00511665035       Page: 4    Date Filed: 11/14/2011



                                   No. 10-41263

285, 289 (5th Cir. 2008)). We have been “skeptical” that a defendant has met
this burden where “the district court imposed a sentence above even the top end
of the incorrect advisory range while commenting on the seriousness of the
offense.” United States v. Davis, 602 F.3d 643, 649–50 (5th Cir. 2010). The
district court only arrived at the offense level of fifteen by expressly rejecting the
offense levels of thirteen and fourteen as insufficiently representing the severity
of his criminal conduct, making it unlikely that considering an even lower
advisory level would have resulted in a diminished sentence. Second, we need
not decide the substantial rights prong because this case does not warrant our
discretion under plain error’s final prong. Given the unlikelihood that the error
influenced the sentence, we conclude that the error does not cast serious doubt
on the fairness, integrity, or public reputation of the judicial process. See id. at
651 (declining to exercise the court’s discretion to remand because of the absence
of “facts that strongly suggest that the district court would have imposed a lesser
sentence had it considered the correct sentence”). Moreover, “even if an increase
in a sentence 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).
In declining to exercise our discretion, we note that “the doctrine of plain error
serves powerful institutional interests, including securing the role of the United
States District Court as the court of first instance, as opposed to a body charged
to make recommendations to appellate courts.” Id. at 378.
      We therefore AFFIRM.




                                          4
