UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-10393
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE AYALA GUADARDO,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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(December 2, 1994)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Jorge Ayala Guadardo (Ayala Guadardo)
appeals his sentence imposed by the district court. We affirm.
Facts and Proceedings Below
Ayala Guadardo pleaded guilty to a one-count indictment
charging him with illegal re-entry into the United States after
deportation subsequent to a felony conviction in violation of 8
U.S.C. § 1326(b)(1). The factual resume signed by Ayala Guadardo
at the time of his guilty plea recited:
"On July 6, 1990, the defendant, Jorge Ayala
Guadardo, was convicted in the 291st District Court of
Dallas County, Texas for the offense of Burglary of a
Habitation. He received a 10 year sentence.
On May 20, 1991, the defendant was released on
parole. He was deported to El Salvador on June 19, 1991.
On December 28, 1993, the defendant was found in the
United States at Dallas County, Texas. He had not
obtained the consent of the Attorney General of the
United States to reapply for admission into the United
States."
The Presentence Report (PSR) recited that on July 6, 1990,
Ayala Guadardo "was convicted of the offense of Burglary of a
Habitation, in Harris County, and was sentenced to 10 years in
TDC," and accordingly increased his offense level by sixteen levels
pursuant to U.S.S.G. § 2L1.2(b)(2) because he had been deported
after a conviction of an aggravated felony. Ayala Guadardo filed
an objection to the PSR contending that his 1990 Texas conviction
for burglary of a habitation was not an aggravated felony and that
therefore his base offense level should have been increased by only
four levels. At the sentencing proceeding, the district court
overruled Ayala Guadardo's objection and adopted the PSR. Ayala
Guadardo then requested that the court look into the facts
underlying his burglary conviction, which, he argued, should not
have been classified as a crime of violence in the PSR. While
raising these arguments, Ayala Guadardo has never denied that he
was convicted of burglary of a habitation under the Texas Penal
Code.1
1
Although we do not have the record of Ayala Guadardo's
burglary conviction before us, we find ample evidence to support
the PSR's statement that he was convicted for burglary of a
Habitation. In addition to the statement in the signed factual
resume reciting his 1990 conviction for "Burglary of a
Habitation," which he has never challenged or sought to withdraw,
Ayala Guadardo's attorney stated at sentencing that his client
had been convicted of burglary of a habitation and sought to
2
The district court refused to explore the facts surrounding
Ayala Guadardo's burglary conviction and sentenced him to a sixty-
month prison term, three years of supervised release, and a
mandatory special assessment of fifty dollars. In this appeal,
Ayala Guadardo argues that the district court erred in concluding
that burglary of a habitation constitutes an aggravated felony
under U.S.S.G. § 2L1.2(b)(2) and in refusing to consider in that
respect the facts underlying his conviction for burglary of a
habitation. We affirm.
Discussion
We will uphold a sentence imposed under the guidelines unless
it is imposed in violation of law, is the result of an incorrect
application of the guidelines, or is an unreasonable departure from
the applicable guideline range. 18 U.S.C. § 3742(e); United States
v. Anderson, 5 F.3d 795, 798 (5th Cir. 1993), cert. denied, 114
S.Ct. 1118 (1994). Application of the guidelines is a question of
law subject to de novo review. United States v. Howard, 991 F.2d
195, 199 (5th Cir.), cert. denied, 114 S.Ct. 395 (1993). We review
the factual findings of the district court for clear error. Id.
U.S.S.G. § 2L1.2 provides for a sixteen-point increase in the
base offense level "[i]f the defendant previously was deported
after a conviction for an aggravated felony." Id. The definition
of aggravated felony in Application Note 7 of the Commentary to
section 2L1.1 includes "any crime of violence (as defined under 18
explain the facts surrounding the conviction. Finally, Ayala
Guadardo's brief filed with this Court again confirmed that
"Appellant was convicted of burglary of a habitation and received
10 years confinement in T.D.C."
3
U.S.C. § 16, not including a purely political offense) for which
the term of imprisonment imposed (regardless of any suspension of
such imprisonment) is at least five years." 8 U.S.C. § 16
provides:
"The term `crime of violence' meansSQ
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical
force against the person or property of another may be
used in the course of committing the offense." 18 U.S.C.
§ 16.
Ayala Guadardo argues that his conviction for burglary of a
habitation under section 30.02 of the Texas Penal Code does not
constitute a crime of violence under U.S.S.G. § 2L1.2. We
disagree. We have held that burglary of a habitation under section
30.02 of the Texas Penal Code constitutes a crime of violence under
18 U.S.C. § 16. United States v. Cruz, 882 F.2d 922 (5th Cir.
1989); United States v. Flores, 875 F.2d 1110 (5th Cir. 1989).
Cruz and Flores both involved the application of the career
offender provisions of U.S.S.G. § 4B1.1.2 At the time of
sentencing in Cruz and Flores, U.S.S.G. § 4B1.2 stated that the
term crime of violence "as used in this provision is defined under
2
U.S.S.G. § 4B1.1 reads:
"A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time of the
instant offense, (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense, and (3) the defendant has
at least two prior felony convictions of either a crime
of violence or a controlled substance offense."
4
18 U.S.C. § 16."3 Likewise, the term crime of violence as used in
U.S.S.G. § 2L1.1 is defined under 18 U.S.C. § 16. Accordingly, we
find that Cruz and Flores govern the facts presented in this
appeal.
In Flores, the defendant challenged the district court's
finding that he was a career offender under U.S.S.G. § 4B1.1,
arguing that his convictions for burglaries of habitations under
the former Texas Penal Code of 1925 did not constitute crimes of
violence. We held that burglary of a habitation under the Texas
Penal Code is a crime of violence under section 4B1.1. Flores, 875
F.2d at 1113. Noting that 18 U.S.C. § 16(b) defined crime of
violence as any felony involving "a substantial risk that physical
force against the person or property of another may be used," we
reasoned that "[w]henever a private residence is broken into, there
is always a substantial risk that force will be used." Id. We
also observed that Application Note 1 of the Commentary to § 4B1.2
stated that the Commission interpreted crime of violence to include
3
Since those decisions, U.S.S.G. § 4B1.2 has been amended
and now specifically lists the burglary of a dwelling as a crime
of violence:
"(1) The term `crime of violence' means any offense
under federal or state law punishable by imprisonment
for a term exceeding one year thatSQ
. . .
(ii) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk
of physical injury to another." U.S.S.G. Appendix c,
amendment 268.
5
a conviction for burglary of a habitation. Id.4
In Cruz, the defendant appealed his sentence on the ground
that the district court erroneously classified him as a career
offender under U.S.S.G. § 4B1.1. The defendant asserted that his
prior conviction for burglary of a habitation under TEXAS PENAL CODE
ANN. § 30.02 (Vernon 1979) did not qualify as a crime of violence
under 4B1.1 because there was no evidence that he used or
threatened to use force. Cruz, 882 F.2d at 923. Rejecting this
argument as "meritless," id., we applied Flores and held that
Cruz's conviction for burglary of a habitation under TEXAS PENAL CODE
ANN. § 30.02 qualified as a crime of violence under section 4B1.1
as the term is defined in 18 U.S.C. § 16. Id. Because Flores
dictated that the defendant's conviction for burglary of a
habitation was a crime of violence, the court in Cruz refused to
consider the defendant's argument that he used no force or threats
during the commission of the offense. Likewise, we find that Ayala
Guadardo was convicted of a crime of violence, and, accordingly, we
decline to look into the facts of this conviction. The clear
import of the decisions in Flores and Cruz is that burglary of a
habitation under the Texas Penal Code is always a crime of violence
under the definition in 18 U.S.C. § 16, thus obviating the need for
a district court to consider the factual context of such a
conviction.
United States v. Jackson, 22 F.3d 583 (5th Cir. 1994),
4
Amendment 268 also changed the Commentary to 4B1.2.
Application Note 2 of the revised Commentary now lists burglary
of a dwelling as a crime of violence.
6
reinforces our conclusion that burglary of a habitation under the
Texas Penal Code is a crime of violence. There, the district court
assigned the defendant a base offense level of twenty under
U.S.S.G. § 2K2.1(a)(4) because it found that his prior Texas
conviction for burglary of a building was a crime of violence.5
The district court apparently construed 4B1.2 to include any
burglary as a crime of violence. This Court held that the district
court erred in classifying the defendant's prior conviction for
burglary of a building as a crime of violence. In reaching this
result, the court reaffirmed its holdings in Cruz and Flores:
"[T]his court has specifically held that the burglary of
a habitation under Tex.Penal Code Ann. § 30.02 (1989) is
a crime of violence for purposes of 4B1.2. Critical to
the conclusion in Flores and Cruz is the idea that
whenever a private residence is broken into, there is
always a substantial risk that force will be used.
However, when a burglary of a building is involved, it
cannot be said that there is always a substantial risk
that force will be used." Jackson, 22 F.3d at 585
(internal quotation marks and citations omitted)
(emphasis added).
The court in Jackson emphasized the distinctions between
burglary of a habitation and burglary of a building under the Texas
Penal Code and reasoned that "[w]hile not constituting burglary of
a dwelling, Jackson's conduct might still constitute a crime of
violence if it presented a serious potential risk of physical
injury to another." Id. (internal quotation marks omitted). The
conclusion we draw from Jackson is that burglary of a habitation
under section 30.02 of the Texas Penal Code is always a crime of
violence, and therefore a sentencing court need not delve into the
5
Application Note 5 to 2K2.1 directs the reader to 4B1.2 for
the definition of the term crime of violence.
7
facts underlying such a conviction. On the other hand, the
burglary of a building does not always constitute a crime of
violence, and thus the sentencing court may need to examine the
facts underlying the conviction. Because Ayala Guadardo was
convicted of burglary of a habitation, we hold that the district
court correctly found that he had been convicted of a crime of
violence and properly refused to look into the facts of his
conviction for that purpose.
Finally, we find additional support for our holding in the
Texas Penal Code provisions concerning burglary. The Texas
burglary statute in effect since January 1, 1974, and at the time
of Ayala Guadardo's 1990 sentencing distinguished between burglary
of "a habitation" and burglary of "a building" other than a
habitation by classifying the former as a felony of the first
degree and the latter as a felony of the second degree. TEX. PENAL
CODE ANN. § 30.02(c)-(d) (Vernon 1989).6 This disparate treatment
of the two offenses is consistent with our holding that the
burglary of a habitation under the Texas Penal Code is per se a
crime of violence under 18 U.S.C. § 16.
Conclusion
For the foregoing reasons, the sentence imposed by the
6
Section 30.01(1) and (2) separately define "habitation" and
"building." The same definitions are also contained in section
28.01(1) and (2).
A 1993 amendment to section 30.02 preserved the distinction
between burglary of "a habitation" and burglary of a building.
Under the revised statute, a burglary is a first degree felony if
the premises are "a habitation" and "any party to the offense
entered the habitation with intent to commit a felony other than
felony theft." TEX. PENAL CODE ANN. § 30.02(d)(2) (Vernon 1994).
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district court is
AFFIRMED.
9