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                         REVISED July 5, 2017

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


                                    No. 15-41270
                                                                         FILED
                                                                     June 30, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

JOSE DARWIN REYES-OCHOA,

             Defendant - Appellant




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


Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Defendant Jose Darwin Reyes-Ochoa appeals his 41-month within-
Guidelines sentence imposed following his guilty-plea conviction and sentence
for illegal reentry after deportation. He contends, for the first time on appeal,
that the district court committed reversible plain error by imposing a 16-level
“crime of violence” Guidelines enhancement based on his prior Virginia
convictions for statutory burglary. In light of Mathis v. United States, 136 S.
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                                       No. 15-41270
Ct. 2243 (2016), we agree the court plainly erred and exercise our discretion to
VACATE Reyes-Ochoa’s sentence and REMAND for resentencing.


                 FACTUAL AND PROCEDURAL BACKGROUND
       Jose Darwin Reyes-Ochoa, a citizen of El Salvador, pled guilty without a
plea agreement to being an alien who knowingly and unlawfully entered the
United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b).
Based on his prior Virginia convictions of statutory burglary, the probation
officer applied a 16-level crime-of-violence (“COV”) enhancement to Reyes-
Ochoa’s base offense of 8 under Section 2L1.2(b)(1)(A)(ii) of the 2014 version of
the Guidelines. 1 The resulting Guidelines range was 41 to 51 months, and the
district court sentenced Reyes-Ochoa to 41 months of imprisonment. Reyes-
Ochoa timely appealed.
       This case was held pending the issuance of the mandate in United States
v. Membreno-David, 650 F. App’x 194 (5th Cir. 2016), which was an appeal
challenging an 8-level sentencing enhancement the defendant received for a
prior Virginia burglary conviction under the same statute at issue here. That
opinion was handed down on May 26, 2016, approximately one month before
the Supreme Court’s decision in Mathis.                After filing an initial brief in
accordance with Anders v. California, 386 U.S. 738 (1967), the Federal Public
Defender’s office filed a merits brief addressing the applicability of the COV
enhancement Reyes-Ochoa received in light of Mathis.




       1   That version of Section 2L1.2(b)(1)(A)(ii) mandates a 16-level increase to a
defendant’s base offense level when the defendant previously has been deported following “a
conviction for a felony that is . . . a crime of violence[.]” The commentary to the Guidelines
defines “crime of violence” as (1) any offense in a list of enumerated offenses, including
“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.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The force clause is not at issue here.
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                                      DISCUSSION
       Because Reyes-Ochoa did not object to the sentencing enhancement in
the district court, we review for plain error. United States v. Hernandez, 690
F.3d 613, 620 (5th Cir. 2012). To establish plain error, Reyes-Ochoa must show
(1) an error; (2) that was clear or obvious; and (3) that affected his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). Evaluating the
plainness of an error requires us to consider whether the law is clear or obvious
at the time of appellate review. Henderson v. United States, 133 S. Ct. 1121,
1124–25 (2013). If Reyes-Ochoa satisfies the first three prongs, we have the
discretion to correct the error but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
       The parties’ arguments are straightforward. Reyes-Ochoa asserts that
based on Mathis and Virginia state law, the Virginia statute underlying his
sentencing enhancement, Virginia Code Section 18.2-90, 2 is indivisible —
precluding the use of the modified-categorical approach — and does not satisfy
the categorical approach because the statute includes offenses broader than
generic “burglary of a dwelling.” Thus, he contends that his COV enhancement
based on his prior Virginia burglary convictions was an error that is plain given
Mathis’s “clear directions on divisibility.” Reyes-Ochoa also argues that the
district court’s error affected his substantial rights and that we should exercise
our discretion to vacate and remand as the sentence seriously affects the
fairness, integrity, or public reputation of judicial proceedings.




       2  Reyes-Ochoa was convicted under Virginia Code Section 18.2-91, which prohibits
committing “any of the acts mentioned in § 18.2-90 with intent to commit larceny,” as well as
“any felony other than murder, rape, robbery or arson . . . , [or] any of the acts mentioned in
§ 18.2-89 or § 18.2-90 with intent to commit assault and battery[.]” See VA. CODE § 18.2-91.
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      The Government argues there is no error, plain or otherwise, because
the Virginia statute is divisible and therefore subject to the modified-
categorical approach. It predominantly relies on Membreno-David, where we
determined Section 18.2-90 was “divisible as to how the entry is accomplished”
and “divisible as to the target of the burglary[.]” See Membreno–David, 650 F.
App’x at 196. The Government also finds support for its position in a 2011
Fourth Circuit decision, which held that the Virginia burglary statute was
divisible and subject to the modified-categorical approach. See United States
v. Foster, 662 F.3d 291, 293–94 (4th Cir. 2011).
      Recognizing that Foster predates both Descamps v. United States, 133 S.
Ct. 2276 (2013), and Mathis, the Government asserts that the Fourth Circuit’s
decision remains good law even under the current analytical framework based
on recent decisions from two Virginia federal district courts. See Blackwell v.
United States, No. 4:10-CR-00012, 2016 WL 5849384, at *4–*5 (W.D. Va. Oct.
6, 2016); United States v. Major, 198 F. Supp. 3d 558, 564–66 (E.D. Va. 2016),
appeal docketed, No. 16-7279 (4th Cir. Sept. 21, 2016). Nevertheless, the
Government notes that because another district court held differently — that
the statute is indivisible post-Mathis — any error asserted by Reyes-Ochoa
cannot be “clear or obvious.” See United States v. Gambill, 214 F. Supp. 3d
544, 548–552 (W.D. Va. 2016).
      Recently, the Fourth Circuit issued an opinion regarding the divisibility
of Virginia Code Section 18.2-90, which we find particularly helpful to our
analysis. See Castendet-Lewis v. Sessions, 855 F.3d 253, 260–64 (4th Cir.
2017). Before addressing that decision and the parties’ arguments regarding
plain error, we briefly set forth the Mathis framework on divisibility.




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                                  No. 15-41270
I.    Divisibility Under Mathis
      “The analytical method for determining whether a predicate offense
merits COV sentencing-enhancement varies by whether the statute for the
offense is divisible or indivisible.” United States v. Mendez-Henriquez, 847
F.3d 214, 218 (5th Cir. 2017). Accordingly, we must first determine whether a
statute lists multiple elements disjunctively, or enumerates various factual
means of committing a single element. See Mathis, 136 S. Ct. at 2249. Where
a statute “enumerates various factual means of committing a single element,”
it is indivisible and the categorical approach should be used; where a statute
lists disjunctive elements that create different offenses, the modified-
categorical approach should be used. Id.
      Applying the Mathis framework requires us to determine “whether
‘listed items’ in a statute ‘are elements or means.’” United States v. Hinkle,
832 F.3d 569, 575 (5th Cir. 2016) (quoting Mathis, 136. S. Ct. at 2256).
“‘Elements’ are the ‘constituent parts’ of a crime’s legal definition — the things
the ‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at
2248 (quoting BLACK’S LAW DICTIONARY (10th ed. 2014)). In other words, they
“must be agreed upon by a jury.” Hinkle, 832 F.3d at 575. Or, as relevant here,
“they are what the defendant necessarily admits when he pleads guilty[.]”
Mathis, 136 S. Ct. at 2248.
      Means, on the other hand, are “various factual ways of committing some
component of the offense[.]” Id. at 2249. As the Court noted, they “are mere
real-world things — extraneous to the crime’s legal requirements.” Id. at 2248.
“When a jury is not required to agree on the way that a particular requirement
of an offense is met, the way of satisfying that requirement is a means of
committing an offense not an element of the offense.” Hinkle, 832 F.3d at 575.
      Once it is determined a statute is indivisible, the categorical approach
requires courts to compare the elements of the state offense and the “generic”
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                                  No. 15-41270
offense. Descamps, 133 S. Ct. at 2281. The Supreme Court has held that
“generic burglary” has the following elements: “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit
a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). Under the relevant
framework, if the Virginia offense is broader than “generic burglary” then
Reyes-Ochoa’s “conviction is not a crime of violence as a matter of law.” See
United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006).


II.    Sentencing Error was Clear or Obvious Under Mathis
       As previously noted, we recognize that an error can be “plain and
obvious, even though precedent foreclosed it at the time of sentencing,” when
“the error became clear in light of a decision announced while th[e] case was
still on direct appeal.” See United States v. Hornyak, 805 F.3d 196, 199 (5th
Cir. 2015). Mathis is such a decision.
       Analyzing the Virginia burglary statute in light of Mathis requires us to
start with the statute’s language:
       If any person in the nighttime enters without breaking or in the
       daytime breaks and enters or enters and conceals himself in a
       dwelling house or an adjoining, occupied outhouse or in the
       nighttime enters without breaking or at any time breaks and
       enters or enters and conceals himself in any building permanently
       affixed to realty, or any ship, vessel or river craft or any railroad
       car, or any automobile, truck or trailer, if such automobile, truck
       or trailer is used as a dwelling or place of human habitation, with
       intent to commit murder, rape, robbery or arson . . . he shall be
       deemed guilty of statutory burglary . . . .

VA. CODE § 18.2-90.
       We conclude that the Fourth Circuit in Castendet-Lewis used the proper
analysis under Mathis for Section 18.2-90. That court dealt with a defendant’s
argument that his Virginia statutory burglary offense should not be

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                                 No. 15-41270
categorized as an “aggravated felony.” See Castendet-Lewis, 855 F.3d at 255–
56. The court determined that “the dispositive issue is whether the offense of
statutory burglary in Virginia constitutes an aggravated felony for purposes of
immigration law.” Id. at 260. Relevant to our inquiry, the court decided
whether the Virginia burglary statute was divisible and thus subject to the
modified-categorical approach as the Government argued. Id. at 261.
      Based on Descamps and Mathis, the Fourth Circuit concluded that “it is
clear that the Virginia burglary statute is indivisible.” Id. After setting forth
the statutory language, the court noted that “[S]ection 18.2-90 identifies four
means of committing the requisite entry to sustain a statutory burglary
conviction[.]”   Id. at 262.   That is, under Mathis’s rationale, the statute
provides “four distinct factual means of describing how the statutory offense of
burglary can be committed — rather than different elements — because the
Virginia courts analyze them interchangeably.” Id.
      The court next addressed its 2011 Foster opinion, which involved
whether Virginia’s burglary statute qualified as a “violent felony” under the
Armed Career Criminal Act (“ACCA”) and is a case on which the Government
relies here. Id. at 263. The Fourth Circuit acknowledged that it had ruled in
Foster that the Virginia burglary statute was divisible “as to the locational
aspect of the statute.” Id. Given that ruling, the Foster court then performed
a review of relevant documents under the modified-categorical approach to
determine if the “defendant had committed the generic version of Virginia
statutory burglary by breaking and entering a building or structure.” Id.
      The Castendet-Lewis panel determined Foster’s approach “does not
survive the Supreme Court’s decision in Mathis.” Id. The court reached its
conclusion based largely on the following rationale:
      Post-Mathis, however, it is clear that the locational aspect of
      section 18.2-90 enumerates “diverse means of satisfying a single

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                                      No. 15-41270
       element of a single crime.” Our conclusion stems from the clear
       language of section 18.2-90, which provides a list of locations —
       each of which would qualify as an element of statutory burglary.
       Moreover, the Supreme Court of Virginia appears to view the
       locational terms of section 18.2-90 interchangeably.
Id. at 263–64 (citations omitted). The Fourth Circuit was thus satisfied “that
the Virginia burglary statute provides different factual means that constitute
entry and location — not different elements,” rendering the statute indivisible
and not subject to the modified-categorical approach. Id. at 264. Ultimately,
the court applied the categorical approach and determined that it was error to
classify the conviction as an aggravated felony as “the Virginia offense of
statutory burglary criminalizes more conduct than the generic federal offense
of burglary.” 3 Id.
       The same result should follow here regarding the COV enhancement
challenged by Reyes-Ochoa. Our unpublished opinion in Membreno-David
does not support the opposite conclusion. To begin with, Membreno-David was
decided pre-Mathis and did not analyze Virginia state law. It cannot control
our analytical approach. Moreover, the relatively succinct divisibility analysis
appears focused on the statute’s general divisibility which, in light of Mathis,
we now know is not the relevant inquiry:
       The Virginia statute is divisible as to how the entry is
       accomplished — breaking and entering during daytime or entering
       at nighttime without breaking. It also is divisible as to the target
       of the burglary — a house, building, or other alternatives not
       relevant here. Accordingly, application of the modified categorical
       approach is proper.
Membreno-David, 650 F. App’x at 196.


       3  We find instructive the fact that “the Virginia statutory scheme codifies generic
common law burglary in a separate statute, Virginia Code § 18.2-89[.]” See United States v.
Farrow, No. 7:05CR00078, 2017 WL 1393583, at *6 (W.D. Va. Apr. 13, 2017). We agree with
the conclusion of that district court that the statute’s structure “reinforces the conclusion
that the statute is indivisible” and thus subject to the categorical approach. Id.
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                                   No. 15-41270
        Similar to the Fourth Circuit’s express disagreement with Foster, our
prior rationale cannot stand in light of Mathis. Nor does it appear that post-
Mathis, the divisibility of Virginia Code Section 18.2-90 is “subject to
reasonable dispute,” particularly when considering the Fourth Circuit’s well-
reasoned Castendet-Lewis opinion. See United States v. Fields, 777 F.3d 799,
802 (5th Cir. 2015). As Virginia Code Section 18.2-90 is an indivisible statute
that sweeps broader than generic “burglary of a dwelling,” we conclude it was
a clear or obvious error to impose a COV enhancement based on Reyes-Ochoa’s
convictions under that statute.


III.    Remaining Prongs of Plain Error are Satisfied
        We must also determine whether the sentencing enhancement affected
Reyes-Ochoa’s substantial rights. Where a defendant shows “a reasonable
probability of a different outcome absent the error,” he has established an
effect on his substantial rights. See Molina-Martinez v. United States, 136 S.
Ct. 1338, 1345 (2016). Absent the 16-level COV enhancement, Reyes-Ochoa
asserts he would have been subject to a Guidelines range of 15 to 21 months,
which is significantly lower than the 41-month within-Guidelines sentence the
district court imposed. We agree that Reyes-Ochoa satisfies this uncontested
prong, as a sentence under an incorrect Guidelines range “can, and most often
will, be sufficient to show a reasonable probability of a different outcome
absent the error.” Id.; see also United States v. Rosales-Mireles, 850 F.3d 246,
249 (5th Cir. 2017), petition for cert. filed (U.S. June 9, 2017) (No. 16-9493).
        Finally, we examine whether “this plain error also affects the fairness of
the judicial proceedings and warrants the exercise of our discretion to correct
the error.” See United States v. Gonzalez-Terrazas, 529 F.3d 293, 299 (5th Cir.
2008). In determining whether to exercise our discretion, we often consider
how substantial the disparity is between the erroneous sentence and the
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                                 No. 15-41270
proper Guidelines range. See United States v. Mudekunye, 646 F.3d 281, 291
(5th Cir. 2011); United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005).
      Reyes-Ochoa relies on two unpublished opinions where we exercised our
discretion to correct less egregious sentencing errors than the one he now
challenges. In the first, we vacated and remanded a defendant’s 12-month
sentence, when that sentence was “at the top end of the incorrectly selected
Guidelines range (6 to 12 months) and two months above the correct Guidelines
range (4 to 10 months).” See United States v. Santacruz-Hernandez, 648 F.
App’x 456, 458 (5th Cir. 2016). In the second, we vacated and remanded a
sentence that was 15 months above the top end of the correct Guidelines range.
See United States v. Miller, 657 F. App’x 265, 270 (5th Cir. 2016).
      Reyes-Ochoa’s sentence was 20 months above the top of his correct
Guidelines range. We conclude that the “substantial disparity between the
imposed sentence and the applicable Guidelines range warrants the exercise
of our discretion to correct the error.” Mudekunye, 646 F.3d at 291; see also
Garza-Lopez, 410 F.3d at 275 (vacating and remanding a “sentence that was
substantially greater than would otherwise have been permitted under the
Sentencing Guidelines”).
      We VACATE the sentence and REMAND the case for resentencing.




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                                  No. 15-41270
EDITH H. JONES, Circuit Judge, dissenting:
      Holding that the district court’s sentence of 41 months imprisonment
was legally erroneous because of intervening case law is one thing, and I
reluctantly concede that in today’s otherworldly approach to sentencing, this
result may be justified. But requiring resentencing for this “plain error,” i.e.
error not raised in the district court, goes a step too far on the record before us.
In Molina-Martinez, the Supreme Court held only that “in most cases, [a ‘plain
error’ in the sentencing range] will suffice for relief if the other requirements of
Rule 52(b) are met.” Molina-Martinez v. United States, __U.S.__, 136 S. Ct.
1338, 1347 (2016)(emphasis added). Fed. Rule Crim. Pro. 52(b) includes a
discretionary decision whether, even supposing a “plain error” affected the
defendant’s “substantial rights,” the error created a “miscarriage of justice” or
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779
(1993)(internal citations omitted).     Not every plain sentencing error that
affects substantial rights will be so egregious as to meet this test.
      The majority here elect to order resentencing not because of any
characteristic involving this defendant or his case, but only based upon two
previous unpublished, non-precedential decisions where plain error relief was
discretionarily awarded other defendants. Because the disparities between the
correct and incorrect guidelines in those cases were less than the 21-month
disparity here, the majority reasons, Reyes-Ochoa must be entitled to a new
sentencing hearing. The majority cites no authority for the proposition that
extraneous sentencing decisions can or should affect the discretionary, case-
specific call we are to make at the fourth prong of plain error relief.
      To offer this defendant the opportunity of resentencing, in my view, is
what actually, seriously affects the fairness, integrity or public reputation of


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                                  No. 15-41270
this court’s proceedings.    Both the defendant’s criminal history and the
tortured procedural history of this case militate against discretionary relief.
      First, the majority refer innocuously to Reyes-Ochoa’s prior burglary
convictions, but his criminal history is replete with lawbreaking. An illegal
alien, he is identified as having 6 aliases and 2 Social Security numbers. He
has been deported twice before.       One deportation arose from his felony
conviction for four residential burglaries in Virginia, each involving a different
victim. The PSR indicates that he was involved in but not prosecuted for nine
residential burglaries, and he confessed to local Virginia authorities that he
had participated in 25-30 residential burglaries.
      Second, Reyes-Ochoa’s appeal was docketed in this court in September
2015. At that time, his appointed counsel sought to be relieved because there
appeared to be no nonfrivolous issue for appeal.            Because our court
meticulously oversees (through our Staff Attorneys’ office) our huge docket of
criminal sentencing issues, the request was denied pending issuance of a
potentially controlling opinion on the Virginia burglary statute in the
Membreno-David case. That opinion, albeit unpublished, would have been
decisive—against Reyes Ochoa--had the Supreme Court not proceeded to
decide Mathis a month or so later. Mathis has provoked reconsideration of
numerous prior court decisions about criminal sentencing. The process of
appellate justice accordingly wound its way some months longer until, one
month before this appeal was submitted, the Fourth Circuit overruled its prior
precedent concerning the Virginia burglary statute. In sum, but not in short,
Reyes-Ochoa is the fortuitous beneficiary of the widespread uncertainty that
now bedevils federal criminal sentencing.
      The result of this resentencing decision will likely be immediate release
from prison. Reyes-Ochoa has been incarcerated since April 2015 on a sentence
of 41 months imprisonment.       The new, correct guidelines range is 15-21
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                                No. 15-41270
months, a period that lapsed while the appellate process went on. Given this
man’s repeated violation of this country’s laws, and the perverse results and
incentives created by our never-ending sentencing uncertainty, I see no
miscarriage of justice in the defendant’s having to live with the consequences
of the sentence he originally received, which was right when pronounced.




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