     Case: 14-50070      Document: 00512890787         Page: 1    Date Filed: 01/06/2015




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

                                                                                FILED
                                    No. 14-50070                          January 6, 2015
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JORGE HERNANDEZ-PEREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-613-1


Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
       Jorge Hernandez-Perez appeals the sentence imposed following his
conviction for illegal reentry in violation of 8 U.S.C. § 1326. Hernandez-Perez
argues that his sentence should be vacated and his case remanded for
resentencing because of an error in the calculation of the Sentencing
Guidelines. He contends that the district court erred by including a 12-level
enhancement based on a finding that a prior North Carolina conviction for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50070

discharging a firearm into an occupied property, in violation of a prior version
of North Carolina General Statute § 14-34.1, was a crime of violence for
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
       Hernandez-Perez objected to the determination that this prior offense
was a crime of violence; however, the district court overruled the objection and
sentenced him to a within-guidelines sentence of 30 months of imprisonment.
Hernandez-Perez also objected that the sentence imposed was both
procedurally and substantively unreasonable.                    Therefore, we review
application of the enhancement de novo. See United States v. Guillen-Alvarez,
489 F.3d 197, 198 (5th Cir. 2007).
       As the parties concede, § 14-34.1 is not one of the enumerated offenses
listed in § 2L1.2, Application Note 1(B)(iii)). See also United States v. Alfaro,
408 F.3d 204, 208-09 (5th Cir. 2005) (finding that similar Virginia statute was
not an enumerated offense). Therefore, for the enhancement to apply, § 14-
34.1 must have as an element “the use, attempted use, or threatened use of
physical force against the person of another.”             § 2L1.2, Application Note
1(B)(iii)).   “[W]hen classifying a prior offense for sentence enhancement
purposes,” courts apply “the categorical approach set forth in Taylor v. United
States,” 495 U.S. 575 (1990), which requires courts to look “to the elements of
a prior offense, rather than to the facts underlying the conviction.” Alfaro, 408
F.3d at 208. 1
       The version of § 14-34.1 in effect at the time of Hernandez-Perez’s
conviction criminalized the willful or wanton discharge of a firearm “into any


       1 We need not determine whether it is appropriate to further narrow Hernandez-
Perez’s conviction under the modified categorical approach. As we will explain below, a
violation of the relevant statute by discharging a weapon into a building is not a crime of
violence. Therefore, even assuming the modified categorical approach could be used to
establish that Hernandez-Perez was convicted for discharging a weapon into a building, it
would not change the outcome in this case.


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                                    No. 14-50070

building, structure . . . or enclosure while it is occupied.” N.C. GEN. STAT. ANN.
§ 14-34.1 (2002). The North Carolina Supreme Court has added an additional
element, which requires a showing that the defendant discharged the firearm
“‘with knowledge that the building [was] then occupied by one or more persons
or when he [had] reasonable grounds to believe that the building might be
occupied by one or more persons.’” State v. James, 466 S.E.2d 710, 714-15 (N.C.
1996) (quoting State v. Williams, 199 S.E.2d 409, 412 (N.C. 1973)).
      We have not previously addressed whether this particular North
Carolina statute is a crime of violence for purposes of § 2L1.2. However, we
have previously held that a similar Virginia statute is not a crime of violence
for purposes of § 2L1.2. See Alfaro, 408 F.3d at 208-09 (addressing VA. CODE
ANN. § 18.2-279 (1993)). We concluded that the Virginia statute did not have
“as a necessary element, the use, attempted use, or threatened use of force
against another” because “a defendant could violate this statute merely by
shooting a gun at a building that happens to be occupied without actually
shooting, attempting to shoot, or threatening to shoot another person.” Alfaro,
408 F.3d at 209.
      The Government argues that Alfaro is distinguishable because, unlike
the Virginia statute at issue in that case, the North Carolina statute requires
the discharge of a firearm into a residence known by the defendant to be
occupied. However, we note that both the Virginia and North Carolina statutes
criminalize conduct involving occupied buildings. See N.C. GEN. STAT. ANN. §
14-34.1 (2002) (“while it is occupied”); VA. CODE ANN. § 18.2-279 (1993) (“when
occupied by one or more persons”). 2 Although the Government is correct that
North Carolina courts have added the additional requirement that the


      2  The Virginia statute also criminalized conduct involving an unoccupied school
building, but our conclusion in Alfaro did not depend exclusively on that portion of the
statute. Alfaro, 408 F.3d at 209.


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                                       No. 14-50070

defendant know, or have “reasonable grounds to believe,” that the building is
occupied, that requirement does not necessarily mean the Hernandez-Perez’s
conviction had an element of a use, attempted use, or threatened use of force
against the person of another. 3
       We also reject the Government’s assertion that the instant case is more
like United States v. Hernandez-Rodriguez, 467 F.3d 492 (5th Cir. 2006). In
that case, the defendant received a 16-level enhancement under § 2L1.2 based
on a prior Texas conviction for “deadly conduct” under Texas Penal Code
§ 22.05(b)(1), which is defined as the knowing discharge of a firearm at or in
the direction of one or more individuals. See Hernandez-Rodriguez, 467 F.3d
at 493-94. In affirming the application of the enhancement in that case, we
distinguished our prior holding in Alfaro, noting that § 22.05(b)(1) requires the
shooting to be at or in the direction of an individual, not merely a building or
structure. Id. at 495.
       Because Hernandez-Perez’s conviction under § 14-34.1 did not
necessarily include an element of the use, attempted use, or threatened use of
force against the person of another, we conclude that Hernandez-Perez’s prior
conviction was not a crime of violence under § 2L1.2(b)(1)(A)(ii). 4                  In the
absence of any indication that the district court imposed some sort of
alternative sentence, we VACATE Hernandez-Perez’s sentence and REMAND
this case for resentencing consistent with this opinion.


       3 After our decision in Alfaro the Supreme Court of Virginia issued an opinion in Ellis
v. Commonwealth, 706 S.E.2d 849, 852-53 (2011), which suggests that the Virginia statute
also includes a knowledge requirement. We are satisfied that North Carolina’s knowledge
requirement does not compel a finding that Hernandez-Perez’ conviction was for a crime of
violence, but we offer no opinion on whether Ellis would have changed the analysis of the
Virginia statute addressed in Alfaro.

       4 We emphasize that our holding is limited to Hernandez-Perez’s conviction. We are
not deciding, for example, whether violating § 14-34.1 by shooting into a vehicle would be a
crime of violence.


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