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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14836
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D.C. Docket No. 5:13-cr-00039-ACC-PRL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL DIAZ-MORALES,
a.k.a. Rafael Diaz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 23, 2014)
Before MARTIN, JULIE CARNES and BLACK, Circuit Judges.
MARTIN, Circuit Judge:
Rafael Diaz-Morales appeals his sentence for illegal re-entry. He argues that
the District Court improperly treated his prior conviction for burglary as a crime of
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violence under United States Sentencing Guideline § 2L1.2(b)(1)(A)(ii), which
significantly increased his sentence. 1 After careful review, and with the benefit of
oral argument, we affirm.
I.
Mr. Diaz-Morales pleaded guilty to illegal re-entry in violation of 18 U.S.C.
§ 1326(a) and (b)(1). His presentence investigation report (“PSR”) increased his
offense level for sentencing by sixteen levels on account of a crime-of-violence
enhancement under USSG § 2L1.2(b)(1)(A)(ii). This increase was based on his
prior conviction for burglary in violation of section 810.02(1) of the Florida
Statutes. In light of his enhanced offense level of 21 and his criminal history
category of IV, the PSR calculated a guideline range of 57- to 71-months
imprisonment, and the District Court sentenced Mr. Diaz-Morales to 57 months.
Mr. Diaz-Morales did not object to the District Court’s application of the
crime-of-violence enhancement either before or during sentencing, so we review
only for plain error. See United States v. Frazier, 605 F.3d 1271, 1282 (11th Cir.
2010). Plain error exists if there was (1) error, (2) that is plain, and (3) that affects
a substantial right. Id. If these requirements are met, we may exercise our
1
Mr. Diaz-Morales also argues that his enhanced sentence violated his Fifth and Sixth
Amendment rights because the fact of his prior conviction was not charged in an indictment and
proven to a jury beyond a reasonable doubt. But, as he recognizes, Supreme Court precedent
forecloses this argument. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219 (1998). We will not discuss it further.
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discretion to correct the error if it (4) “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quotation omitted).
II.
Mr. Diaz-Morales objects for the first time on appeal to the District Court’s
application of Guideline section 2L1.2(b)(1)(A)(ii), which imposes a sixteen-level
enhancement for unlawfully entering or remaining in the United States after a
conviction for a felony that is a “crime of violence.” A “crime of violence” is
defined by reference to an enumerated list of qualifying offenses, one of which is
“burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii).
There is no question that Mr. Diaz-Morales was previously convicted of
burglary under Florida Statute § 810.02(1)(a) (2000). But not all burglary
convictions are crimes of violence. Burglary convictions are predicate crimes of
violence “only if the underlying state offense meets the generic definition of
burglary” of a dwelling. See United States v. Ramirez-Flores, 743 F.3d 816, 820
(11th Cir. 2014). This is known as the “categorical approach.” Id.
Not all burglary statutes will match the generic definition of burglary of a
dwelling. If a burglary statute is overbroad—if it “‘sweeps more broadly than the
generic burglary [of a dwelling], [then] a conviction under that law cannot
categorically count as a “crime of violence,” even if the defendant actually
committed burglary [of a dwelling] in its generic form.’” Id. (alterations adopted)
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(quoting Descamps v. United States, 570 U.S. ___, ___, 133 S. Ct. 2276, 2283
(2013)). But even a conviction under an overbroad statute can still be a “crime of
violence” if the statute is “divisible.”
A divisible statute is one that “sets out one or more elements of the offense
in the alternative, in effect creating several different crimes.” Id. (citing
Descamps, 570 U.S. at ___, 133 S. Ct. at 2283–85). When the statute of
conviction is divisible, “a modified categorical approach applies.” Id. Under the
modified categorical approach, if at least one of a divisible statute’s alternatives
matches the generic definition of burglary of a dwelling, the sentencing court may
“‘consult a limited class of documents, such as indictments and jury instructions, to
determine which alternative element formed the basis of the defendant’s prior
conviction.’” Id. (quoting Descamps 570 U.S. at ___, 133 S. Ct. at 2281). If those
so-called Shepard documents, Shepard v. United States, 544 U.S. 13, 125 S. Ct.
1254 (2005), indicate that the defendant was convicted under an alternative with
elements that match the generic definition of burglary of a dwelling, then this prior
conviction is a crime of violence.
But “[i]f the statute of conviction defines burglary ‘not alternatively, but
only more broadly than the generic offense,’” the statute is indivisible and “the
modified categorical approach ‘has no role to play.’” Id. at 821 (quoting
Descamps, 570 U.S. at ___, ___, 133 S. Ct. at 2283, 2285). If the modified
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categorical approach does not apply, a reviewing court may not look to the
Shepard documents. Instead, the court must look only to the elements of the
statute of conviction to determine whether the statute defines burglary more
broadly than generic burglary of a dwelling. If the statute is overbroad, then the
conviction is not a crime of violence under the categorical approach. Finally, we
note that whatever approach is used—categorical or modified categorical—the
sentencing court must always focus on the elements of the statute of conviction and
not the defendant’s conduct. See Descamps, 570 U.S. at ___, 133 S. Ct. at 2292–
93.
III.
Mr. Diaz-Morales did not object at sentencing to the District Court’s
conclusion that his prior Florida burglary conviction was a crime of violence. He
argues for the first time on appeal that the elements of the Florida statute of
conviction, § 810.02(1), are broader than the elements of generic burglary of a
dwelling. The District Court did not say whether it used the categorical or
modified categorical approach to reach that holding. (This is not surprising,
because Mr. Diaz-Morales did not object or demand any explanation from the
District Court. In the way we have just set out above, a sentencing court may, in
the right circumstances, use either approach in deciding whether a prior conviction
is a crime of violence. If a sentencing court decides that a prior conviction is not a
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crime of violence under the categorical approach, its inquiry does not stop there. It
must go on to consider whether the modified categorical approach applies, and if it
does, whether the conviction qualifies as a crime of violence under that approach.
See United States v. Howard, 742 F.3d 1334, 1345–46 (11th Cir. 2014). For that
reason, Mr. Diaz-Morales must show that it is plain error to treat his prior
conviction as a crime of violence under either approach.
Mr. Diaz-Morales has not made the required showing. Our review leads us
to conclude that it is not plain error to treat his prior conviction as a crime of
violence under the modified categorical approach. This Court has no controlling
precedent holding that section 810.02(1) is indivisible for federal sentencing
purposes. Therefore, application of the modified categorical approach to this
statute is not plain error. Finally, because Mr. Diaz-Morales has abandoned any
argument that his conviction does not actually qualify as a crime of violence under
the modified categorical approach, we need not decide that question, and Mr. Diaz-
Morales cannot succeed in this appeal. 2
2
We need not decide whether it is also plain error to treat Mr. Diaz-Morales’s prior conviction as
a crime of violence under the categorical approach. Even if it is, he must still show that it is
plain error to apply the modified categorical approach, or that it is plain error to hold that his
conviction qualifies under that approach—showings he cannot make. See Howard, 742 F.3d at
1345–47 (explaining that if a sentencing court holds that a prior conviction does not qualify
under the categorical approach, it proceeds to consider whether the modified categorical
approach applies and whether the conviction qualifies under that approach). As we have held in
a different context: if a litigant must make two showings to succeed, but fails to make one, we
need not address the other. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (discussing
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At the time of Mr. Diaz-Morales’s prior conviction, Florida law defined
burglary as
entering or remaining in a dwelling, a structure, or a conveyance with
the intent to commit an offense therein, unless the premises are at the
time open to the public or the defendant is licensed or invited to enter
or remain.
Fla. Stat. § 810.02(1)(a) (2000). A “dwelling” is
a building or conveyance of any kind, including any attached porch,
whether such building or conveyance is temporary or permanent,
mobile or immobile, which has a roof over it and is designed to be
occupied by people lodging therein at night, together with the
curtilage thereof.
Id. § 810.011(2).
It is not plain error to treat this statute as divisible and apply the modified
categorical approach to determine whether it qualifies as a crime of violence. Mr.
Diaz-Morales has pointed to no Supreme Court or Eleventh Circuit precedent
deciding whether a prior conviction for burglary under section 810.02(1) is
divisible. And “there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving” the disputed issue. United States
v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam); see also
Ramirez-Flores, 743 F.3d at 822 (“An error is ‘plain’ if controlling precedent from
the Supreme Court or the Eleventh Circuit establishes that an error has occurred.”).
ineffective assistance of counsel). Cf. Howard, 742 F.3d at 1347 (“Courts are free to pursue the
most efficient means of deciding a particular case.”).
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We addressed and rejected a similar argument in Ramirez-Flores. There, the
defendant argued that it was plain error to treat a South Carolina burglary statute as
divisible. Ramirez-Flores, 743 F.3d at 822–23. We held that it was neither “plain
nor obvious that the . . . statute is indivisible” in the absence of a case “interpreting
whether [the statute] is divisible for federal sentencing purposes.” Id. at 822. So
too here: no controlling precedent has held that section 810.02(1) is indivisible for
federal sentencing purposes. Thus, “[w]e need not in this case definitively decide
that the . . . statute at issue is divisible. We need decide only that it is not plain or
obvious that the statute is indivisible.” Id. at 823. Without controlling precedent
declaring section 810.02(1) indivisible for federal sentencing purposes, it was not
plain error for the District Court to find it divisible and apply the modified
categorical approach.
As we’ve said, we need not decide whether Mr. Diaz-Morales’s conviction
actually qualifies as a crime of violence under the modified categorical approach.
By not briefing the question, he has abandoned any argument that his conviction
does not qualify. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003) (arguments not briefed are abandoned).
Neither this Court nor the Supreme Court has ever had occasion to hold that
section 810.02(1) is indivisible. That being the case, it is not plain error to hold
otherwise and apply the modified categorical approach. The District Court did not
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plainly err when it held that Mr. Diaz-Morales’s conviction was a “crime of
violence” and applied the sixteen-level enhancement mandated by USSG § 2L1.2.
AFFIRMED.
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