     Case: 12-41353       Document: 00512477400         Page: 1     Date Filed: 12/19/2013




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

                                                                            FILED
                                                                        December 19, 2013
                                       No. 12-41353
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

GUSTAVO LOEZA CASTANEDA, also known as Gustavo Loeza-Castaneda,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-163-1


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:1
       Defendant–Appellant Gustavo Loeza Castaneda (Castaneda) appeals his
58-month sentence for illegal reentry in violation of 8 U.S.C. § 1326. Castaneda
claims the district court committed plain error by imposing a 16-level crime of
violence enhancement under § 2L1.2(b)(1)(A)(ii) of the Federal Sentencing
Guidelines based on Castaneda’s Texas conviction for burglary of a habitation.
We vacate Castaneda’s sentence and remand for resentencing.



       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41353

                                                 I
      Castaneda pleaded guilty without a plea agreement to illegal reentry in
violation of 8 U.S.C. § 1326. The presentence investigation report (PSR) began
with a base offense level of 8.1 The PSR then added a 16-level enhancement
pursuant to § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines because he was
previously deported following a conviction for a crime of violence: his 2001 Texas
felony conviction for burglary of a habitation.2 The PSR thus calculated his
adjusted offense level as 24, and after a 2-level reduction for acceptance of
responsibility, determined his total offense level to be 22.3 This total offense
level coupled with his criminal history category of III yielded a Guidelines range
of 51 to 63 months of imprisonment.4 After Castaneda failed to object to the 16-
level sentencing enhancement for a prior crime of violence, the district court
sentenced him within the Guidelines range to 58 months of imprisonment,
explaining that his burglary conviction constituted one of the enumerated crimes
of violence listed in the Sentencing Guidelines.5 This timely appeal followed.
                                                 II
      We review de novo a district court’s characterization of a prior offense as
a crime of violence.6 However, because Castaneda did not object on this basis in
the district court, our review is for plain error.7 To establish plain error,
Castaneda must show there was (1) an error, (2) the error was clear or obvious,

      1
          U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2011) [hereinafter U.S.S.G.].
      2
          Id. § 2L1.2(b)(1)(A)(ii).
      3
          Id. § 3E1.1(a).
      4
          Id. ch. 5, pt. A (Sentencing Table).
      5
          Id. § 2L1.2 cmt. n.1(B)(iii).
      6
          United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012).
      7
          United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir. 2010).

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                                            No. 12-41353

and (3) the error affected his substantial rights.8 If these three showings are
made, we have the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of the judicial proceedings.9
                                                III
      Castaneda argues that the district court erred by imposing the 16-level
crime of violence enhancement. He claims his Texas burglary of a habitation
conviction was under subsection (a)(3) of Texas Penal Code § 30.02, which he
contends does not constitute a crime of violence. The Government concedes that
the district court plainly erred and that the sentence should be vacated and the
case remanded for resentencing. This court, however, is not bound by the
Government’s concession, and we “give the issue independent review.”10
      Under § 2L1.2 of the Sentencing Guidelines, defendants who are convicted
of unlawful reentry face a 16-level sentencing enhancement if, prior to their
deportation, they were convicted for a felony that is a “crime of violence.”11 The
commentary to § 2L1.2 defines a “crime of violence” as (1) any offense in a list
of twelve enumerated offenses, which includes “burglary of a dwelling,” or (2)
“any other offense under federal, state, or local law that has as an element the
use, attempted use, or threatened use of physical force against the person of
another.”12
      When classifying a prior conviction for sentence enhancement purposes,
we employ a categorical approach when determining if the offense was an



      8
          Puckett v. United States, 556 U.S. 129, 135 (2009).
      9
          Id.
      10
           United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008).
      11
           U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      12
           Id. § 2L1.2 cmt. n.1(B)(iii).

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                                          No. 12-41353

enumerated offense,13 unless the Guidelines direct otherwise. Under the
categorical approach, “the statute of conviction, not the defendant’s underlying
conduct, is the proper focus.”14 If a statute has disjunctive subsections, as here,
“we may look beyond the statute to certain records made or used in adjudicating
guilt to determine which subpart of the statute formed the basis of the
conviction.”15 In doing so, our review is “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.”16
       Castaneda was convicted of burglary of a habitation under Texas Penal
Code § 30.02(a), but the central issue is whether Castaneda was convicted under
subsection (a)(1) or (a)(3). Section 30.02 provides, in relevant part,
       (a) A person commits an offense if, without the effective consent of
       the owner, 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.17
       The district court applied the crime of violence enhancement because it
believed that Castaneda’s conviction constituted the enumerated offense of
“burglary of a dwelling.”18          Before considering whether his conviction under

       13
        See Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Rodriguez, 711
F.3d 541, 549-50 (5th Cir. 2013) (en banc).
       14
            United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (citations omitted).
       15
          United States v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012) (citing United
States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir. 2007); United States v. Murillo–Lopez,
444 F.3d 337, 339-40 (5th Cir. 2006)).
       16
            Id.
       17
            TEX. PENAL CODE ANN. § 30.02(a) (West Supp. 2000).
       18
         At sentencing, the district judge stated, “if you look at . . . the illegal reentry, and
then you look at the scoring, and then it says the scoring is for certain kinds of offenses, it’s
a 16 level bump. And so, you know it’s—and one of them is burglary of a [dwelling].” See

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                                          No. 12-41353

§ 30.02(a) constitutes a crime of violence as a “burglary of a dwelling,” we note
that Castaneda was not convicted of an offense within the meaning of the
residual clause in the definition of “crime of violence” in § 2L1.2 of the
Guidelines, which includes any offense that “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.”19       No subsection of § 30.02(a) requires as an element the use,
attempted use, or threatened use of force.20                   Consequently, Castaneda’s
conviction does not constitute a crime of violence under the residual clause, and
the only issue in this appeal is whether the district court erred in deciding that
Castaneda’s burglary of a habitation conviction constituted an enumerated
offense.
       The Fifth Circuit has held that § 30.02(a)(1) coincides with the generic,
contemporary definition of burglary, so it constitutes a “burglary of a dwelling”
and therefore a crime of violence.21             However, this court has held that a



U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
       19
            U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
       20
          See United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc)
(providing that “in order for § 2L1.2 to apply, the intentional use of force must be ‘a constituent
part of a claim that must be proved for the claim to succeed’” and that “[i]f any set of facts
would support a conviction without proof of that component, then the component most
decidedly is not an element—implicit or explicit—of the crime”) (citation omitted); United
States v. Turner, 305 F.3d 349, 350-51 (5th Cir. 2002) (considering whether Texas Penal Code
§ 30.02(a) “has as an element the use, attempted use, or threatened use of physical force
against the person of another” and concluding that the statutory elements of § 30.02(a) “do not
make it a per se crime of violence, because they do not necessarily involve use of physical force
against the person of another”).
       21
          See United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir. 2013) (per curiam).
In United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), cert. denied, 134 S.Ct.
512 (2013), this court revised its methodology with respect to certain crime of violence
determinations, but the court limited the application of its revised crime of violence analysis
to “offense categories that are not defined at common law.” Id. at 552 & n.17. Because the
Rodriguez court noted that burglary is defined at common law, the new Rodriguez
methodology does not apply in the instant case. See id. at 552 n.16.

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                                       No. 12-41353

conviction under § 30.02(a)(3) is not a generic burglary because it lacks the
requisite element of specific intent to commit a crime at the time of entry.22
Whether Castaneda was convicted under § 30.02(a)(1) or § 30.02(a)(3) therefore
matters because the former is a crime of violence under the enumerated offense
of “burglary of a dwelling” but the latter is not.
       In the instant case, to determine whether § 30.02(a)(1) or § 30.02(a)(3)
formed the basis of Castaneda’s conviction, we consider three records from the
Texas proceedings against Castaneda: the judgment, the indictment, and the
judicial confession and stipulation.23 The Texas judgment states that Castaneda
was charged with and pleaded guilty to burglary of a habitation and that the
court accepted his plea, but it does not identify the subsection of § 30.02 that he
violated. The Texas indictment charged that Castaneda “did then and there
with the intent to commit theft, enter a habitation owned by Fermin Garcia
without Fermin Garcia’s effective consent.” Although the indictment does not
specify a subsection of § 30.02, the language of the indictment tracks subsection
(a)(1) since it includes the phrase “with the intent to commit theft.”
       The final record is Castaneda’s judicial confession and stipulation, in
which Castaneda confessed that he “did then and there intentionally or
knowingly enter a habitation, without the effective consent of [F.G.], the owner


       22
          See United States v. Constante, 544 F.3d 584, 585-87 (5th Cir. 2008) (per curiam)
(holding that, for purposes of 18 U.S.C. § 924(e), while § 30.02(a)(1) qualifies as a generic
burglary, § 30.02(a)(3) does not “because it does not contain an element of intent to commit a
felony, theft, or assault at the moment of entry”); see also United States v. Trevino-Rodriguez,
463 F. App’x 305, 307-08 (5th Cir. 2012) (unpublished) (applying Constante in the §
2L1.2(b)(1)(A)(ii) context); United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011) (stating
that, because of the similarities between § 2L1.2(b)(1)(A) and 18 U.S.C. § 924(e), this court
“treat[s] cases dealing with these provisions interchangeably”).
       23
         See United States v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012) (explaining that
the charging document may be considered in determining which subpart of a statute formed
the basis of conviction); United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir. 2008)
(concluding that a state court judgment and a Texas judicial confession may also be
considered).

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                                        No. 12-41353

thereof, and attempted to commit or committed theft of property . . . .” This
confession tracks § 30.02(a)(3)’s language providing that an offense is committed
when someone “enters a . . . habitation and commits or attempts to commit” a
theft.24 The confession does contain the phrase “intentionally or knowingly.”
However, the confession only states that Castaneda “intentionally or knowingly
enter[ed] a habitation,” not that he entered “with intent to commit a theft,”
which is the specific intent required under § 30.02(a)(1).25 Castaneda thus did
not confess to having the specific intent to commit a crime required of
§ 30.02(a)(1).
       The Government had the burden of proving, by a preponderance of the
evidence, that Castaneda’s prior conviction qualified for a sentencing
enhancement.26 To prove Castaneda committed a “burglary of a dwelling” for
purposes of the crime of violence sentencing enhancement, the Government had
to establish that Castaneda’s plea of guilty “necessarily admitted elements of the
generic offense” of burglary of a dwelling.27 While Castaneda was charged with
burglary of a dwelling under § 30.02(a)(1), he did not admit to all of elements of
that subsection because he did not admit that he entered “with intent to commit

       24
            TEX. PENAL CODE ANN. § 30.02(a)(3) (West Supp. 2000).
       25
          Id. § 30.02(a)(1); see Constante, 544 F.3d at 586 & n.3 (examining language of an
indictment charging that the defendant “intentionally or knowingly enter[ed] a habitation,
without the effective consent of . . . the owner . . . and attempted to commit or committed theft
of property” and observing that “[t]he ‘intentionally or knowingly’ language in the indictment
refers to a general criminal intent requirement, but not the specific intent element contained
in § 30.02(a)(1) and the Taylor definition of generic burglary”).
       26
         United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997) (noting that “[t]he
burden is on the party seeking to adjust the sentence level to prove by a preponderance of the
relevant and sufficiently reliable evidence the facts necessary to support the adjustment.”)
(internal quotation marks omitted).
       27
         See Shepard v. United States, 544 U.S. 13, 26 (2005); see also United States v. Henao-
Melo, 591 F.3d 798, 805 (5th Cir. 2009) (“As the Court noted in Shepard, Taylor demands
certainty when determining whether a past guilty plea ‘necessarily admitted elements of the
generic offense.’”) (citation omitted).

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                                         No. 12-41353

a felony, theft, or an assault.” Castaneda only admitted to the elements of
§ 30.02(a)(3), which does not include an element of the generic offense of
burglary—intent to commit a crime at the time of entry.28 The Government
therefore failed to show that Castaneda necessarily admitted to all of the
elements of a generic “burglary of a dwelling” offense. As a result, the district
court erred in holding that the Government had satisfied its burden of proving
Castaneda was convicted of a crime of violence.
         The district court’s error was clear and obvious. At the time of sentencing,
it was clear that for an offense to constitute a generic burglary, it must contain
the element of entry “with intent to commit a crime,”29 and that the Government
had to show Castaneda’s plea of guilty “necessarily admitted elements of the
generic offense” of burglary.30 Because Castaneda did not admit to the element
of specific intent in his judicial confession and stipulation, it was clear error to
find he confessed to “burglary of a dwelling” under the Sentencing Guidelines.
We note that Fifth Circuit cases have specifically considered Texas Penal Code
§30.02(a) and held that while § 30.02(a)(1) is a generic burglary, § 30.02(a)(3) is
not.31

         28
         See Taylor v. United States, 495 U.S. 575, 598 (1990) (explaining that “the generic,
contemporary meaning of burglary contains at least the following elements: an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit
a crime”); Constante, 544 F.3d at 585 (recognizing that, under Taylor, a generic burglary
requires intent to commit a crime at the time of entry).
         29
              Taylor, 495 U.S. at 598.
         30
              Shepard, 544 U.S. at 26.
         31
         Constante, 544 F.3d at 585, 587 (noting that “[t]his court has previously held that the
offense of burglary of a habitation under § 30.02(a)(1) of the Texas Penal Code qualifies as a
generic burglary for purposes of [18 U.S.C. § 924(3)]” but concluding that “a burglary
conviction under § 30.02(a)(3) of the Texas Penal Code is not a generic burglary under the
Taylor definition because it does not contain an element of intent to commit a felony, theft, or
assault at the moment of entry”); see also United States v. Trevino-Rodriguez, 463 F. App’x
305, 307-08 (5th Cir. 2012) (unpublished) (applying Constante in the § 2L1.2(b)(1)(A)(ii)
context and holding it was obvious error to apply the crime of violence enhancement when the

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                                         No. 12-41353

       The parties agree that without the 16-level crime of violence enhancement,
Castaneda would have been subject to, at most, an 8-level “aggravated felony”
enhancement authorized by § 2L1.2(b)(1)(C) for the purposes of the advisory
Guidelines sentencing range.32 Together with the appropriate reduction for
acceptance of responsibility, Castaneda’s total offense level would have been
14.33 This total offense level coupled with a criminal history category of III
would produce a Guidelines range of 21 to 27 months of imprisonment,34 which
would be anywhere from 31 to 37 months (or roughly 3 years) less than the 58
months imposed by the district court.
       Given that the applicable Guidelines range would be substantially lower
than the sentence Castaneda received, the error affected Castaneda’s substantial
rights and seriously affected the fairness, integrity, and public reputation of the
proceedings.35 Accordingly, we vacate Castaneda’s sentence and remand to the
district court for resentencing.




indictment tracked the language of § 30.02(a)(3)); United States v. Rodriguez-Serna, 428 F.
App’x 488, 488-89 (5th Cir. 2011) (unpublished) (citing Constante in the § 2L1.2(b)(1)(A)(ii)
context and recognizing that § 30.02(a)(3) does not constitute a generic burglary); United
States v. Aguilar-Rocha, 307 F. App’x 794, 796 (5th Cir. 2009) (unpublished) (also citing
Constante in the § 2L1.2(b)(1)(A)(ii) context and recognizing that § 30.02(a)(1) constitutes the
“burglary of a dwelling” under the Sentencing Guidelines but § 30.02(a)(3) does not).
       32
            U.S.S.G. § 2L1.2(b)(1)(C).
       33
        More specifically, the base offense level of 8 would be enhanced by 8 levels but then
reduced by 2 levels for acceptance of responsibility.
       34
            U.S.S.G. ch. 5, pt. A (Sentencing Table).
       35
          See United States v. Andino-Ortega, 608 F.3d 305, 311-12 (5th Cir. 2010) (holding
that an error in applying the 16-level crime-of-violence enhancement affected the defendant’s
substantial rights and seriously affected the fairness, integrity, or public reputation of the
judicial proceedings, when, absent the error, the defendant would have been subject to either
a 4-level or 8-level enhancement).

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                                 No. 12-41353

                             *        *         *
     Castaneda’s sentence is VACATED and REMANDED for further
proceedings.




                                     10
