United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 10, 2006
July 14, 2006
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 03-40658
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LUIS MENDOZA-SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:
I.
Luis Mendoza-Sanchez (Mendoza) pled guilty to violating 8
U.S.C. § 1326(a) and (b)(2) by being found in the United States,
without permission, following both his conviction for an aggravated
felony and later deportation. The district court increased
Mendoza’s offense level by 16 levels because his deportation
occurred following his conviction of a crime of violence. See § 2
L1.2(b)(1)(A)(ii). This sixteen level increase was based on
Mendoza’s conviction in circuit court in Johnson County, Arkansas
for the offense of burglary. The district court overruled
Mendoza’s objection to the increase and sentenced him to a 46 month
term of imprisonment, along with a three year tern of supervised
release. Mendoza them filed a timely notice of appeal.
II.
A.
Mendoza’s primary argument on appeal is that the district
court erred by enhancing his base offense level 16 levels under §
2L1.2(b)(1)(A)(ii), based on his Arkansas conviction of burglary.
Mendoza argues that the conviction is not a “crime of violence”.
We review the district court’s application of the sentencing
guidelines de novo and the findings of fact for clear error. U.S.
v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.), en banc, cert.
denied, 541 U.S. 965 (2004).
The 20021 version of § 2L1.2(b)(1)(A)(ii) provides for a 16-
level increase in a defendant’s base offense level if he was
previously deported after being convicted of a crime of violence.
The Application Notes define a “crime of violence” either as one of
a list of enumerated offenses or as “an offense under federal,
state, or local law that has as an element the use, attempted use,
1
Because Mendoza-Sanchez committed his offense on December 24,
2002, and was sentenced on May 5, 2003, the 2002 version of the
Sentencing Guidelines apply.
2
or threatened use of physical force against the person of another.”
§ 2L1.2, comment. (n.1(B)(ii)(I), (II)) (2002). The enumerated
offenses are “murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses (including sexual abuse of a minor), robbery,
arson, extortion, extortionate extension of credit, and burglary of
a dwelling.” § 2L1.2, comment. (n.1(B)(ii)(II)) (2002).
When determining whether a prior offense constitutes a crime
of violence for purposes of § 2L1.2(b)(1)(A)(ii), this court uses
a different methodology depending on whether the prior offense
constitutes a crime of violence (1) because it is an enumerated
offense or (2) because it is “an 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.”
§ 2L1.2, comment. (n.1(B)(ii)(I), (II)). In determining whether an
offense has as an element the use, attempted use, or threatened use
of physical force against the person of another, this court uses
the categorical approach set forth in Taylor v. United States, 495
U.S. 575, 600-02 (1990), and examines the elements of the offense,
rather than the facts underlying the conviction. See United States
v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc),
cert. denied, 125 S. Ct. 932 (2005). Under the categorical
approach, if the statute of conviction contains a series of
disjunctive elements, this court may look to the indictment and, if
necessary, the jury instructions, for the limited purpose of
determining which of a series of disjunctive elements a defendant’s
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conviction satisfies. Id. at 258. However, this court uses a
“common sense approach” to determine whether a defendant’s offense
qualifies as an offense enumerated in § 2L1.2, comment.
(n.1(B)(ii)(II)). See United States v. Izaguirre-Flores, 405 F.3d
270, 273-75 (5th Cir. 2005).
In the instant case, the Government does not contend that the
Arkansas burglary statute has as an element the use, attempted use,
or threatened use of physical force against the person of another.
Instead, the Government argues that Mendoza-Sanchez’s Arkansas
burglary offense constitutes the enumerated offense of burglary of
a dwelling for purposes of § 2L1.2(b)(1)(A)(ii). Accordingly, this
court must use the common sense approach to determine whether the
Arkansas offense of burglary is the equivalent of the enumerated
offense of burglary of a dwelling “as that term is understood in its
ordinary, contemporary, [and] common meaning.” Izaguirre-Flores,
405 F.3d at 274-75 (internal quotation marks and citation omitted).
The Arkansas statute under which Mendoza-Sanchez was convicted2
provided that “[a] person commits burglary if he enters or remains
unlawfully in an occupiable structure of another person with the
purpose of committing therein any offense punishable by
2
In district court, both Mendoza-Sanchez and the probation
officer who prepared the PSR erroneously relied on the current
version of Ark. Crim. Code 5-39-201, which became effective on
August 13, 1993. As Mendoza-Sanchez pleaded guilty of burglary and
was sentenced to five years of probation on July 2, 1993, he
necessarily was convicted under the prior version of the statute.
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imprisonment.” Ark. Code Ann. 5-39-201(a)(1987). Mendoza-Sanchez
contends that the Government cannot establish that he committed a
“burglary of a dwelling” as that term is enumerated under § 2L1.2,
comment. (n.1(B)(ii)(II))(2002), because the broad definition of
burglary in the Arkansas statute encompasses the burglary of
structures other than dwellings. Mendoza-Sanchez also points out
that neither the charging instrument3 nor the judgment in his case
establishes that his offense involved the burglary of a dwelling.
The parties agree that a “dwelling” is commonly understood as
meaning “a house or other structure in which a person lives.”
In Izaguirre-Flores, this court noted that when called on to
determine whether a violation of a state statute constitutes an
enumerated offense for purposes of § 2L1.2(b)(1)(A)(ii), “we have
held that when the enumerated offense under the Guidelines
encompasses a narrower range of conduct than that prohibited by the
state statute, we cannot hold as a matter of law that the sentencing
enhancement is proper.” 405 F.3d at 276-77. Moreover, this court
has held that the Texas offense of burglary of a building, as set
forth in TEX. PENAL CODE ANN. § 30.02 (Vernon’s 1974), is not the
equivalent of the enumerated offense of burglary of a dwelling. See
United States v. Rodriguez-Rodriguez, 388 F.3d 466, 467 & n.6 (5th
3
The information in Mendoza-Sanchez’s case charged that he did
“willfully and unlawfully enter and remain unlawfully in an
occupiable structure of another person, to-wit: Diana Mull, Rt. 1
Box 508, London, Arkansas, with the purpose of committing therein
theft of property, the same being a Class B Felony . . . .”
5
Cir. 2004). Texas law defines a “building” as “any enclosed
structure intended for use or occupation as a habitation or for some
purpose of trade, manufacture, ornament, or use.” TEX. PENAL CODE
ANN. § 30.01(2) (Vernon’s 1974). The Arkansas definition of
“occupiable structure,” see Ark. Code Ann. § 5-39-101, like the
Texas definition of “building,” includes structures used for
purposes other than “dwelling.” The Arkansas offense of burglary
cannot therefore be considered the equivalent of the enumerated
offense of burglary of a dwelling.
The Government argues that the district court did not err in
enhancing Mendoza-Sanchez’s sentence because according to the PSR,
the offense report pertaining to Mendoza-Sanchez’s burglary case
characterized the building as a residence. But we have never
authorized consideration of the defendant’s conduct as reflected in
police reports or similar instruments to determine whether that
conduct constitutes a crime of violence. See Izaguirre-Flores, 405
F.3d at 274 n.14. We need not decide in this case whether facts
developed by the probation officer and reported in the PSR can be
used for this purpose because, as discussed below, Mendoza admitted
he entered a house or home.
At the rearraignment, the following exchange took place with
the defendant, after the district court asked Mendoza-Sanchez
whether it was true that he had been convicted of an aggravated
felony:
MR. ANDY GUARDIOLA: Felony Burglary is a five-year sentence,
6
your Honor.
THE COURT: Burglary
THE INTERPRETER: A house. A home.
THE COURT: You went to the house without
permission, right? Do you accept
that?
THE DEFENDANT: Yes.
In the context of this exchange, it is clear to us that the
court’s question “you went into the house without permission”
referred back to the interpreter’s use of “house” and “home” as
synonymous. When Mendoza’s admission that he entered the home (or
dwelling) without permission is added to the allegations of the
information, this adequately establishes his conviction of a crime
of violence. We are satisfied that the district court can use all
facts admitted by the defendant in determining whether the prior
conviction qualifies as an enumerated offense under § 2L1.2.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.),
cert. denied, 126 S. Ct. 267, 163 L. Ed. 2d 240 (2005). The
district court did not err in imposing the 16 level increase.
B.
Mendoza-Sanchez next challenges the constitutionality of
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Mendoza-Sanchez’s argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
7
(1998).
C.
In a supplemental letter brief, Mendoza-Sanchez argues that his
sentence is unconstitutional and should be vacated because it was
imposed under the mandatory United States Sentencing Guidelines held
unconstitutional in Booker. Mendoza-Sanchez did not raise his
challenge to the mandatory application of the Sentencing Guidelines
in the district court. Accordingly, this court reviews the district
court’s sentencing decision for plain error only. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126
S. Ct. 267 (2005).
By sentencing Mendoza-Sanchez under a mandatory guidelines
regime, the district court committed what this court refers to as
Fanfan error. United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005). “It is clear after Booker that application of the
Guidelines in their mandatory form constitutes error that is plain.”
Valenzuela-Quevedo, 407 F.3d at 733. Thus, Mendoza-Sanchez has
satisfied the first and second prongs of the plain error analysis.
Nevertheless, Mendoza-Sanchez has not satisfied the third prong of
the plain error analysis by demonstrating that the district court’s
Fanfan error affected his “substantial rights.” See id. To make
such a showing, Mendoza-Sanchez must demonstrate that the error
“affected the outcome of the district court proceedings” such that
there is a probability of error “sufficient to undermine confidence
in the outcome.” See id. (internal quotation marks and citations
8
omitted). Specifically, Mendoza-Sanchez must show that the
sentencing judge, sentencing under an advisory scheme rather than
a mandatory one, would have reached a different result. See United
States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005).
The district court sentenced Mendoza-Sanchez to 46 months of
imprisonment, a sentence at the lowest end of his sentencing
guidelines range. However, the fact that the sentencing judge
imposed the minimum sentence under the sentencing guidelines range,
alone, is no indication that the judge would have reached a
different conclusion under an advisory scheme. See United States
v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir.), cert. denied, 126 S.
Ct. 264 (2005). Nothing in the record indicates that the district
court would have imposed a significantly different sentence if the
guidelines were advisory only. See Valenzuela-Quevedo, 407 F.3d at
733-34. Accordingly, Mendoza-Sanchez has not shown that the
district court committed reversible plain error in imposing his
sentence. See id.
AFFIRMED.
9