     Case: 10-40348 Document: 00511438301 Page: 1 Date Filed: 04/07/2011




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

                                                 FILED
                                                                             April 7, 2011
                                     No. 10-40348
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RANDY CARRILLO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 2:09-CR-1030-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Randy Carrillo appeals the 188-month sentence imposed following his
guilty plea to being a felon in possession of ammunition and possession with
intent to distribute crack cocaine. Carrillo does not challenge his conviction on
appeal. Carrillo argues that the district court erred in enhancing his offense
level pursuant to U.S.S.G. § 4B1.1, the career offender enhancement, based in
part on his prior conviction for a crime of violence, the burglary of a habitation.
He argues that the statute under which he was convicted, Texas Penal Code

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40348 Document: 00511438301 Page: 2 Date Filed: 04/07/2011

                                  No. 10-40348

Annotated § 30.02(a), includes a means to commit the offense that does not meet
the definition of a generic burglary as required by the Guidelines to impose such
an enhancement. Carrillo also asserts that, although the indictment charged
him conjunctively under two subsections of the statute, one subsection of which
satisfied the definition of generic burglary, his guilty plea did not establish that
he committed the conduct under that subsection.
      The language in the indictment charging Carrillo with burglary tracked
the language of § 30.02(a)(1) and § 30.02(a)(3), and the offense was charged
conjunctively. A Texas conviction for burglary of a habitation under § 30.02(a)(1)
constitutes a crime of violence for § 4B1.2 purposes. See United States v. Silva,
957 F.2d 157, 162 (5th Cir.1992) (18 U.S.C. § 924(e) context); United States v.
Hornsby, 88 F.3d 336, 339 (5th Cir. 1996); see also James v. United States, 550
U.S. 192, 127 (2007) (noting that the definition of “crime of violence” for a career
offender enhancement “closely tracks” the definition of “violent felony” set forth
at § 924(e)).   But a conviction under § 30.02(a)(3) does not, because that
statutory subsection does not require entry with an intent to commit a crime of
violence. See United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008)
(§ 924(e) context).
      The judgment from Carrillo’s prior conviction states that the trial court
heard evidence and adjudged Carrillo guilty of both paragraphs of the
indictment. In Texas, however, “the State is only required to present evidence
sufficient to support the conviction, the State need not present evidence that the
defendant committed the offense according to each of the means alleged in the
indictment.” United States v. Morales-Martinez, 496 F.3d 356, 360 (5th Cir.
2007).   The record in this case contains no evidence reflecting the specific
subsection to which Carrillo pleaded guilty, nor does it contain the factual basis
for his plea or any judicial confession. It thus cannot be determined whether
Carrillo pleaded guilty to an offense that meets the definition of a generic
burglary, an enumerated crime of violence for purposes of § 4B1.1. Accordingly,

                                         2
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                                No. 10-40348

we hold that the district court erred in applying § 4B1.1’s career offender
enhancement in this case.
     The Government has not met its burden of showing that such an error is
harmless. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.
2009). Thus, the case must be remanded, id., and we do not address the other
arguments advanced by Carrillo. Accordingly, we affirm Carrillo’s conviction,
but we vacate his sentence and remand his case for a new sentencing hearing.
     AFFIRMED in part, VACATED and REMANDED in part.




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