IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 1, 2008
No. 07-50375 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN GONZALEZ-TERRAZAS,
also known as Juan Gonzalez-Derasas,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before GARZA, STEWART, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The defendant Juan Gonzalez-Terrazas appeals his sentence of 57 months
imprisonment based on his guilty-plea conviction for unlawful reentry of an alien
after removal in violation of 8 U.S.C. § 1326. Gonzalez argues that the district
court committed plain error in applying a 16-level sentencing enhancement
pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii)
for Gonzalez’s alleged commission of a “crime of violence” based on his prior
conviction under California law for residential burglary, CAL. PENAL CODE § 459
No. 07-50375
(West 1999). For the following reasons, we VACATE the sentence and REMAND
for RESENTENCING.1
Gonzalez was removed from the United States in February 2005. In 2006,
he was found in El Paso, Texas. He did not have permission to reenter the
United States. Gonzalez was charged with and pleaded guilty to one count of
illegal reentry following removal in violation of 8 U.S.C. § 1326. Prior to his
removal, Gonzalez was convicted of residential burglary in violation of California
Penal Code § 459. Because of that conviction, Gonzalez’s presentence report
(PSR) recommended a 16-level crime-of-violence enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A). This enhancement resulted in a guideline range of 57 months
to 71 months imprisonment. The district court adopted the recommendation
and sentenced Gonzalez to 57 months imprisonment. Gonzalez appeals.
Gonzalez argues that the district court plainly erred in applying the 16-
level enhancement because, under this court’s decision in United States v.
Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007), a conviction under California
Penal Code § 459 for residential burglary does not constitute a crime of violence
for the purposes of U.S.S.G. § 2L1.2(b)(1)(A).
We review the district court’s application and interpretation of the
sentencing guidelines de novo and its factual findings for clear error. United
States v. Juarez Duarte, __F.3d__, 2008 WL 54791, at *3 (5th Cir. Jan. 4, 2008);
United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). As Gonzalez
concedes, because Gonzalez failed to object to the district court’s imposition of
the 16-level crime-of-violence enhancement, we review this issue for plain error.
1
Gonzalez also challenges on appeal, as he did below, the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as sentencing factors. As Gonzalez
properly concedes, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), and he raises the argument only to preserve it. See United States v. Ortega-
Gonzaga, 490 F.3d 393, 394 n.1 (5th Cir. 2007). This argument is “fully foreclosed from further
debate.” United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
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No. 07-50375
See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). Plain error
occurs when: “(1) there was an error; (2) the error was clear and obvious; and (3)
the error affected the defendant’s substantial rights.” Villegas, 404 F.3d at 358
(citing United States v. Olano, 507 U.S. 725, 732–37 (1993)). If each of these
conditions is satisfied, we may exercise our discretion to correct the error only
if “the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Garza-Lopez, 410 F.3d at 272 (internal quotation marks
omitted).
Applying the plain error analysis, we must first determine whether there
was an error. Section 2L1.2(b)(1)(A)(ii) provides for a 16-level sentencing
enhancement for a defendant deported after committing—among other things—a
“crime of violence.” The Application Notes to § 2L1.2 define “crime of violence”
to include “burglary of a dwelling” or any felony that “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” See Ortega-Gonzaga, 490 F.3d at 394. The only question here is
whether Gonzalez’s conviction under California law for residential burglary
constituted the enumerated offense of “burglary of a dwelling” under the
categorical approach. See id. Under this court’s decision in Ortega-Gonzaga, it
is clear that it did not.
In Ortega-Gonzaga, this court analyzed the California offense of
residential burglary under California Penal Code § 459, applying the categorical
approach, and concluded that it did not constitute the enumerated offense of
burglary of a dwelling under U.S.S.G. § 2L1.2. Id. at 394–96. In answering the
question, the court “look[ed] to the ‘generic, contemporary’ meaning of burglary
of a dwelling, employing a ‘common sense approach.’” Id. at 394 (quoting United
States v. Santiesteban-Hernandez, 469 F.3d 376, 378–79 (5th Cir. 2006)). The
court reasoned that the California offense of residential burglary was not
equivalent to the enumerated offense of burglary of a dwelling under U.S.S.G.
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No. 07-50375
§ 2L1.2 because burglary of a dwelling, as defined in the guidelines, requires an
unprivileged or unlawful entry, while the California offense simply requires
proof of an entry, even a lawful entry. Id. at 395. As such, because the burglary
offense under California Penal Code § 459 is not the “burglary of a dwelling,”and
because the Government concedes that § 459 does not have as an element “the
use, attempted use, or threatened use of physical force,” a § 459 offense does not
constitute a crime of violence.
Acknowledging this court’s decision in Ortega-Gonzaga, the Government
concedes that the burglary offense defined by California Penal Code § 459 does
not constitute the enumerated offense of burglary under U.S.S.G. § 2L1.2
because, on its face, the California offense does not require that entry into the
residence be without consent. Nonetheless, the Government argues that the
criminal complaint against Gonzalez modified the “entry” element of § 459 by
including an allegation that Gonzalez did “willfully and unlawfully enter an
inhabited dwelling house . . . .” (emphasis added). According to the
Government, the state complaint’s allegation that Gonzalez willfully and
unlawfully entered the dwelling narrowed his California conviction to activity
within the definition of the enumerated offense of burglary under U.S.S.G.
§ 2L1.2. Therefore, the Government contends that Gonzalez’s prior burglary
conviction was in fact a crime of violence under § 2L1.2.
The Government’s argument fails for two reasons. First, the Government
has not demonstrated that this case falls within that “narrow range of cases” in
which a district court may look beyond the elements of an offense to classify that
offense for sentence enhancement purposes. This court uses a categorical
approach to determine whether an offense qualifies as an enumerated offense
for sentence enhancement purposes under § 2L1.2. See United States v.
Mendoza-Sanchez, 456 F.3d 479, 482 (5th Cir. 2006) (citing Taylor v. United
States, 495 U.S. 575, 600–02 (1990)); Garza-Lopez, 410 F.3d at 273. Using this
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No. 07-50375
approach, “a district court looks to the elements of a prior offense, rather than
to the facts underlying the conviction, when classifying a prior offense for
sentence enhancement purposes.” Garza-Lopez, 410 F.3d at 273. However, in
a “narrow range of cases” the district court may go beyond the elements of the
offense to make this determination. Id. Specifically, “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 conviction satisfies.”
Mendoza-Sanchez, 456 F.3d at 482 (citing United States v. Calderon-Pena, 383
F.3d 254, 257 (5th Cir. 2004) (en banc)). We have referred to this latter
approach, looking beyond the elements of the offense, as the “modified
categorical approach.” See, e.g., United States v. Castillo-Morales, 507 F.3d 873,
876 n.2 (5th Cir. 2007).
In Ortega-Gonzaga, this court noted that we use the “‘modified categorical
approach’ only to determine of which subsection of a statute a defendant was
convicted.” 490 F.3d at 396 n.5. Regarding the California burglary offense at
issue in this case, the court noted that “[California Penal Code] § 459 has no
subsection requiring ‘unlawful entry.’” Id. In this way, the court in Ortega-
Gonzaga recognized that the modified categorical approach, as applied by this
circuit, does not apply to the “entry” element of California Penal Code § 459.2
2
This court’s decision in United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006),
which neither party cites, is not to the contrary. There, the court applied the modified
categorical approach to California Penal Code § 459, but only where the defendant “[did] not
argue that the district court improperly considered the criminal complaint in determining
whether his burglary conviction constituted a ‘crime of violence.’” Id. at 341. Because the
defendant conceded that the modified categorical approach was appropriate in that case, the
court was not confronted with the threshold question of whether to apply that approach. In
addition, the court did not apply the categorical approach to the “entry” element of § 459, as
the district court did here; instead, the court applied the approach to a different part of the
statute, which contained disjunctive elements, a part of the statute defining the various
structures encompassed within the offense of burglary under § 459. Id. at 340, 344. This
approach is consistent with the principle that when a statute refers to burglaries of several
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No. 07-50375
The Government attempts to dismiss the court’s discussion of this point
as dictum because the court went on to conclude that “[i]n any event, ‘unlawful’
entry was not a part of Ortega’s indictment or conviction.” Id. The footnoted
language, however, was not dictum; it was one of two alternative holdings, and
each is binding. See United States v. Wright, 496 F.3d 371, 375 n.10 (5th Cir.
2007) (“[I]t’s well-settled that alternative holdings are binding, they are not
dicta.”).
In light of Ortega-Gonzaga, the district court erred in applying the 16-level
crime-of-violence enhancement based on the defendant’s prior conviction under
California Penal Code § 459.
Second, even assuming that it were appropriate in this case to look beyond
the elements of the state offense, the Government’s argument that Gonzalez’s
California conviction for residential burglary constitutes a “crime of violence”
under U.S.S.G. § 2L1.2 nonetheless fails. The Government bears the burden of
establishing that this sentence enhancement applies. See United States v.
Torres-Diaz, 438 F.3d 529, 535 (5th Cir. 2006). The Government did not meet
this burden.
The Government’s argument that Gonzalez’s California burglary
conviction is equivalent to the generic offense of burglary of a dwelling is based
on, what appears to be, the initial criminal complaint in the state case. The
complaint was filed only four days after the alleged burglary occurred and
contains a discovery request to defense counsel. Although the complaint accuses
Gonzalez of “willfully and unlawfully” entering “an inhabited dwelling house”
different types of structures, this court may look to charging papers to see which of the various
statutory alternatives (structures) are involved in the particular case. See United States v.
Torres-Diaz, 438 F.3d 529, 534 (5th Cir. 2006). In any event, by failing to cite or mention
Murillo-Lopez, the Government has abandoned any argument based on Murillo-Lopez that the
rule in Ortega-Gonzaga somehow does not or should not apply. See Yohey v. Collins, 985 F.2d
222, 224–25 (5th Cir. 1993) (issues and arguments not briefed adequately are waived).
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No. 07-50375
there is nothing in the record to suggest that Gonzalez pled guilty to this
particular complaint or, more specifically, to the particular allegations in the
complaint that went beyond the bare elements of the offense.
All the Government offers to establish Gonzalez’s prior conviction for
burglary is a California abstract of judgment. The abstract of judgment,
however, is not even the abstract for Gonzalez’s prior burglary conviction.
Instead, it is an abstract of judgment for a probation revocation, which
incidentally lists the prior burglary conviction. California abstracts of judgment
are of questionable reliability. See United States v. Gutierrez-Ramirez, 405 F.3d
352, 359 (5th Cir. 2005) (“[C]onsidering the low level of reliability associated
with abstracts of judgment in California, we are satisfied they should not be
added to the list of documents Shepard authorizes the sentencing judge to
consult.”). Although the abstract may be sufficient to establish the mere fact
that there was a prior burglary conviction, the abstract offers no clue as to the
circumstances of the plea, such as to which document the defendant actually
pleaded or to which facts related to the underlying offense the defendant
admitted.
Because there is no evidence from which we can determine whether the
defendant actually pleaded to “wilfully and unlawfully” entering the dwelling
house, the Government failed to establish that Gonzalez was convicted of a
burglary offense that satisfies the crime-of-violence definition in U.S.S.G.
§ 2L1.2. The district court’s contrary finding was error.
Thus, the district court erred in applying the 16-level crime-of-violence
enhancement.
Turning to the second prong of the plain error analysis, we must
determine whether the error was clear and obvious. We conclude that this error
was clear and obvious in light of our decision in Ortega-Gonzaga. Although
Ortega-Gonzaga was decided after Gonzalez was sentenced, the error need only
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No. 07-50375
be plain at the time of appellate consideration. See Johnson v. United States,
520 U.S. 461, 468 (1997); see also United States v. Martinez-Vega, 471 F.3d 559,
561 (5th Cir. 2006) (“[T]he Supreme Court has made clear that we determine
whether the error was plain at the time of appellate consideration—not at the
time of trial.”).
Finally, applying the last prong of the plain error analysis, we conclude
that the error affected the defendant’s substantial rights because there is “a
reasonable probability that, but for the district court’s misapplication of the
Guidelines, [Gonzalez] would have received a lesser sentence.” Garza-Lopez, 410
F.3d at 275. With the erroneous enhancement, Gonzalez faced a guideline range
of 57 to 71 months imprisonment. Without the enhancement, Gonzalez faced a
guideline range of 24 to 30 months. This significant disparity in guideline
ranges based on the erroneous enhancement is sufficient to establish that
Gonzalez’s substantial rights were affected. See id. (substantial rights affected
where the defendant received a seventy-seven month term of imprisonment, but
absent plain error, the defendant’s guideline range would have been at most
thirty-three to forty-one months); Villegas, 404 F.3d at 364 (“In the absence of
[the error], Villegas’s sentencing range would have been reduced from between
twenty-one and twenty-seven months to between ten and sixteen months.
Because these two sentencing ranges do not overlap, the district court’s error
necessarily increased Villegas’s sentence and thus affected his substantial
rights.”). Therefore, the district court’s application of the 16-level crime-of-
violence enhancement constitutes plain error.
In light of this substantial disparity, this plain error also affects the
fairness of the judicial proceedings and warrants the exercise of our discretion
to correct the error. See Garza-Lopez, 410 F.3d at 275 (concluding that the
imposition of a sentence that was substantially greater than the guideline range
affected the defendant’s substantial rights “and the fairness of the judicial
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No. 07-50375
proceedings”). For these reasons, we VACATE Gonzalez’s sentence and
REMAND for RESENTENCING.
9