     Case: 15-51223   Document: 00513702412     Page: 1    Date Filed: 10/03/2016




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

                                 No. 15-51223                      FILED
                                                             October 3, 2016
                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                          Clerk

                  Plaintiff - Appellee

v.

FELIX URIBE, also known as Francisco Servin Luna,

                  Defendant - Appellant


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


Before REAVLEY, DAVIS, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Felix Uribe pled guilty to violating 8 U.S.C. § 1326 for illegally
reentering the United States after being deported.          Because Uribe had
previously been convicted of burglary of a habitation in Texas, see Tex. Penal
Code § 30.02(a), his presentence report included, and the district court applied,
a 16-level crime of violence enhancement to Uribe’s base offense level pursuant
to the Sentencing Guidelines.     U.S.S.G. § 2L.2(b)(1)(A)(ii).     This court has
previously held that Tex. Penal Code § 30.02(a)(1) defines a generic burglary
of a dwelling within the scope of this enhancement. The question Uribe raises
here is whether our precedent must be altered in light of Mathis v. United
States, 136 U.S. 2243 (2016). We hold it does not and affirm the sentence.
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                                       No. 15-51223
       Although Uribe’s judicial confession to burglary of a habitation does not
expressly state whether he violated § 30.02(a)(1) or (a)(3), he effectively
confessed to violating both provisions when he admitted he “unlawfully . . .
intentionally and knowingly entered a habitation . . . with the intent to commit
theft,” see id. § 30.02(a)(1), and “did unlawfully . . . intentionally and
knowingly enter a habitation . . . and then and there commit and attempt to
commit theft,” see id. § 30.02(a)(3). 1
       The district court overruled Uribe’s objection to the 16-level
enhancement and sentenced Uribe to a term of imprisonment of 75 months,
followed by a three-year term of supervised release. The district court added
that it would have imposed the same sentence due to Uribe’s criminal history
and the 18 U.S.C. § 3553(a) sentencing factors even if the crime of violence
enhancement was incorrect. Uribe timely appealed.
                                     DISCUSSION
       The district court’s enhancement was proper under the Sentencing
Guidelines, which authorize a 16-level increase in sentencing range for
committing a prior “crime of violence.” U.S.S.G. § 2L.2. This court has held
that under the modified categorical approach, Texas Penal Code § 30.02(a) is a



       1 Uribe contends that ambiguity pervades the indictment, judicial confession, and
judgment. We disagree. The judgment does not specify whether Uribe was convicted under
§ 30.02(a)(1) or (a)(3); it convicts him under § 30.02 generally. However, the indictment
charged him with unlawful entry into a woman’s house with intent to commit sexual assault
(violation of § 30.02(a)(1)) and unlawful entry with the commission or attempted commission
of sexual assault (violating § 30.02(a)(3)). That Uribe pled down to admitting theft rather
than sexual assault in these two charges is material only to their classification in Texas law
as first or second degree felony offenses. What is significant, however, is the connection
between his judgment, the judicial confession and the indictment. The indictment charged
Uribe with violating each of these noted subsections. Even though the judicial confession
does not cite the statutory subsections, the language of the confession precisely tracks the
language of each subsection. There is no ambiguity; Uribe cannot escape the enhancement
by pointing to distinctions without a difference.
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                                  No. 15-51223
divisible statute, and that § 30.02(a)(1) matches the generic definition of
“burglary of a dwelling” because it comprises the elements of “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.” United States v. Murillo-Lopez, 444 F.3d 337, 341
(5th Cir. 2006) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). This
subsection falls within the guidelines’ relevant definition of a crime of violence.
United States v. Conde-Castaneda, 753 F.3d 172, 175–79 (2014). The issue in
this case is whether the Supreme Court’s recent decision in Mathis v. United
States, 136 S. Ct. 2243 (2016) disturbs Conde-Castaneda. We hold that it does
not.
        Mathis applied the categorical approach to a state burglary statute that
contained alternative means to satisfy one of its elements. In so doing, Mathis
provided helpful guidance for determining whether a predicate statute of
conviction is divisible. United States v. Howell, No. 15-10336, ---F.3d ----,----,
2016 WL 5314661, at *6 (5th Cir. Sept. 22, 2016). A statute that outlines only
various means of committing the predicate offense is not divisible, whereas a
statute that sets forth alternative elements of each offense is divisible. Mathis,
136 S. Ct. at 2256. The difficulty, however, lies in ascertaining whether the
state statute contains alternative means or elements. A federal court should
defer to state law in making this determination. Id. at 2250. A sentencing
judge may consider state court rulings, the face of the statute, the statute’s
structure, and “if state law fails to provide clear answers,” a judge may consider
the record of prior conviction. Id. at 2256–57 & n.7.
        The Texas burglary statute is elements-based. The statute provides:
         (a) A person commits an offense if, without the effective consent
             of the owner, the person:



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                                      No. 15-51223
              (1) enters a habitation, or a building (or any portion of
                  a building) not then open to the public, with intent
                  to commit a felony, theft, or an assault; or

              (2) remains concealed, with intent to commit a felony,
                  theft, or an assault, in a building or habitation; or

              (3) enters a building or habitation and commits or
                  attempts to commit a felony, theft, or an assault.


Tex. Penal Code § 30.02(a). A statutory list that provides “illustrative
examples,” is a clear indication that the statute “includes only a crime’s means
of commission.” Mathis, 136 S. Ct. at 2256. Unlike the state statute at issue
in Mathis, which criminalized the unlawful entry into “any building, structure,
[or] land, water, or air vehicle,” Iowa Code § 702.12, the Texas burglary statute
does not provide an illustrative list or outline multiple ways to satisfy a single
element. Id. at 2250.
       Important to this means-elements inquiry is also whether a state’s
highest court has described the statute as constituting means or elements. The
Texas Court of Criminal Appeals—Texas’s highest court for criminal cases—
classifies this statute as elements-based. Day v. State, 532 S.W.2d 302, 305–
06   (Tex.    Crim.    App.     1975),    abrogated     on    other   grounds,     Hall v.
State, 225 S.W.2d 524, 527–31 (Tex. Crim. App. 2007) (“The elements of the
three types of burglary are set out following . . . As can be seen, the first three
elements of each of the three types of burglary and criminal trespass are
virtually identical. The fourth main element of burglary . . . is absent from the
offense of criminal trespass.” (emphases added)); 2 see also Devaughn v. State,



       2This version of the Texas burglary statute, Tex. Penal Code § 30.02(a), was later
amended to include “assault” in every subsection. This, however, does not change the court’s
elements-means     analysis.         CRIMES       AND      OFFENSES—CORRECTIONAL
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                                 No. 15-51223
749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (stating that under § 30.02(a)(1)
“[p]roof of the intent to commit either theft or felony was, and is, a necessary
element in the State’s case” (emphasis added)).       Bolstered by Mathis, we
conclude that each provision of the statute sets forth elements, not means.
      Because the predicate statute is elements-based, it is divisible and the
modified categorical approach applies to determine which of the provisions of
§ 30.02(a) was the basis of Uribe’s conviction. Mathis, 136 S. Ct. at 2249.
Uribe confessed to violating § 30.02(a)(1) and (a)(3), and he was convicted
under § 30.02(a).    In applying the modified categorical approach, Uribe’s
conviction must be compared with the generic offense of burglary. Id. Uribe
confessed to knowingly entering the victim’s habitation with the intent to
commit felony theft.      This was sufficient to constitute a violation of
§ 30.02(a)(1), which aligns with the generic offense of burglary, and constitutes
a “burglary of a dwelling” under the Sentencing Guidelines. Conde-Castaneda,
753 F.3d at 176. Uribe’s crime of violence enhancement was proper.
                                CONCLUSION
      For the foregoing reasons, the sentence is AFFIRMED.




INSTITUTIONS—CRIMINAL PROCEDURE, 1995 Tex. Sess. Law Serv. Ch. 318 (S.B. 15)
(VERNON'S).


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