United States v. Islas-Saucedo

903 F.3d 512

UNITED STATES of America, Plaintiff-Appellee

v.Jesus ISLAS-SAUCEDO, Defendant-Appellant

No. 16-40672

United States Court of Appeals, Fifth Circuit.

FILED September 11, 2018

Lauretta Drake Bahry, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Jesus Islas-Saucedo, Pro Se.

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit Judges.

CARL E. STEWART, Chief Judge:

Jesus Islas-Saucedo appeals the sentence imposed following his guilty plea conviction for illegal reentry after having been deported. In this appeal, he contends that the district court improperly enhanced his base offense level by 12 levels under U.S.S.G. Manual § 2L1.2(b)(1)(A)(ii) (U.S. Sentencing Comm'n 2015) and that this erroneously increased his U.S. Sentencing Guidelines range. His argument is predicated on his contention that his 1990 Texas conviction for burglary of a habitation under Texas Penal Code § 30.02(a)(1) is not a crime of violence. More specifically, relying on Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016), he asserts that the Texas statute is indivisible and does not comport with the generic crime of burglary of a habitation.

While Islas-Saucedo's appeal was pending, this court held in United States v. Herrold , 883 F.3d 517, 517 (5th Cir. 2018) (en banc) that a conviction under the same Texas burglary statute is not a violent felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii).¹ Given the court’s ruling in Herrold , the Government concedes that Islas-Saucedo is entitled to a vacated sentence, though it requests that we delay ruling until the Supreme Court has considered whether to review our decision on the Texas burglary statute. We reject that suggestion and VACATE and REMAND for re-sentencing.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 28, 2015, Islas-Saucedo was charged by a one-count indictment with being unlawfully present in the United States after deportation subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). On January 26, 2016, without a plea agreement, Islas-Saucedo entered a plea of guilty to the indictment.

Using the 2015 edition of the Sentencing Guidelines, the pre-sentence investigation report ("PSR") calculated the total offense level to be 17, by: (1) starting with a base offense level of eight, pursuant to § 2L1.2(a); (2) adding 12 levels pursuant to § 2L1.2(b)(1)(A)(ii), on the ground that Islas-Saucedo's 1990 Texas felony conviction for burglary of a habitation was a "crime of violence" that was not assessed any criminal history points; and (3) subtracting three levels pursuant to § 3E1.1(a) and (b) for timely acceptance of responsibility. A total offense level of 17, coupled with Islas-Saucedo's criminal history category of IV, resulted in a Guideline imprisonment range of 37 to 46 months. Islas-Saucedo did not object to the PSR's Guideline calculations.

On May 2, 2016, the district court sentenced Islas-Saucedo to serve 42 months in the custody of the Bureau of Prisons and a three-year term of supervised release. Islas-Saucedo timely appealed.

On December 27, 2016, Islas-Saucedo, representing himself pro se, filed his opening brief. For the first time on appeal, Islas-Saucedo argues that the district court erroneously applied the 12-level crime of violence enhancement because (1) not all of the subsections of the Texas burglary statute, TEX. PENAL CODE § 30.02(a)(1)-(3), meet the definition of generic burglary, and (2) the modified categorical approach may not be used to narrow his offense because, under Mathis ,² the Texas statute is indivisible. He argues that Mathis effectively overruled this court's precedent in United States v. Conde-Castaneda , 753 F.3d 172, 175–77 (5th Cir. 2014) (holding that a Texas burglary conviction under Texas Penal Code § 30.02(a)(1) constitutes generic burglary and, accordingly, is a crime of violence).

On May 4, 2017, the Government filed a motion for summary affirmance on the ground that this court has already rejected Islas-Saucedo's arguments in United States v. Uribe , 838 F.3d 667, 671 (5th Cir. 2016) (holding Texas Penal Code § 30.02(a) is divisible). This court denied the motion on September 26, 2017. However, on October 5, 2017, this court granted the Government's motion to stay further proceedings pending a ruling on the petition for rehearing en banc in Herrold .

This court issued its Herrold opinion on February 20, 2018. The Government concedes that under Herrold , the district court's application of the crime of violence enhancement pursuant to § 2L1.2(b)(1)(A)(ii) would be erroneous. See Herrold , 883 F.3d at 541 (holding Texas Penal Code § 30.02(a) is overbroad and indivisible). Nevertheless, the Government requests that this court hold the case in abeyance pending the Supreme Court’s determination on the petitions for a writ of certiorari filed in Herrold and Quarles .³

See Petition for Writ of Certiorari, Herrold , 883 F.3d 517 (No. 17-1445); see also Petition for Writ of Certiorari, Quarles , 850 F.3d 836 (No. 17-778). To preserve its position, the Government challenges our holding in Herrold by arguing that Islas-Saucedo was properly subject to the ACCA enhancement under the Texas burglary statute. The Government maintains that (1) under the categorical approach, Texas Penal Code § 30.02(a) is a crime of violence because all of its subsections match a generic burglary offense, and (2) alternatively, the Texas burglary statute is divisible and, under the modified categorical approach, Islas-Saucedo’s prior conviction is a crime of violence.⁴

II. STANDARD OF REVIEW

This court reviews "the district court’s interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error." United States v. Johnson , 880 F.3d 226, 233 (5th Cir. 2018) (quoting United States v. Johnson , 619 F.3d 469, 472 (5th Cir. 2010) ). Because Islas-Saucedo failed to object in district court, the issue of whether his prior conviction is a crime of violence under § 2L1.2 is subject to plain error review. See United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009) (quoting United States v. Lopez-Velasquez , 526 F.3d 804, 806 (5th Cir. 2008) (per curiam) ).

Under the plain error standard of review, Islas-Saucedo must show: (1) an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e. , affirmatively waived, by him; (2) the legal error must be clear or obvious, rather than subject to reasonable dispute; (3) the error must have affected his substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings; and (4) if the above three prongs are satisfied, this court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted).

III. DISCUSSION

A. Categorical and Modified Categorical Approach

Texas's burglary statute is alternatively phrased, comprised of a list of several disjunctive subsections. Statutes taking this form pose a preliminary question—and its answer switches us to the appropriate analytical track. [The court] must determine whether the statute sets forth alternative means of committing a single substantive crime, or separate elements, effectively defining distinct offenses. We refer to the former sort of statutes as "indivisible," and we call the latter "divisible."

Herrold , 883 F.3d at 521–22 (internal quotation marks and citations omitted).

"If a statute describes alternative means of committing one offense (i.e. , if a statute is indivisible), we perform the categorical approach." Id . at 522 (citing Mathis , 136 S.Ct. at 2248 ). The categorical approach "examine[s] the elements of the offense, rather than the facts underlying the conviction or the defendant's actual conduct, to determine whether the enhancement applies." United States v. Rodriguez-Negrete , 772 F.3d 221, 225 (5th Cir. 2014) (internal quotation marks and citation omitted). If "the elements of the statute forming the basis of the defendant's conviction ... are the same as, or narrower than, those of the generic offense[,]" a categorical match exists, and the enhancement is proper. Descamps , 570 U.S. at 257, 133 S.Ct. 2276.

"If the alternative terms of a statute outline elements of distinct offenses (i.e. , if a statute is divisible), [the court utilizes the modified categorical approach]." Herrold , 883 F.3d at 522 (citing Mathis , 136 S.Ct. at 2249 ). Under the modified categorical approach, "a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis , 136 S.Ct. at 2249. "The court can then compare that crime, as the categorical approach commands, with the relevant generic offense." Id.

B. Generic Burglary and Texas Burglary

In Taylor v. United States , the Supreme Court held that Congress intended "burglary" under the ACCA to have a "uniform definition." 495 U.S. 575, 590–92, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Supreme Court declined to adopt the common law’s definition of burglary—"the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony"—because that narrow definition "ha[d] little relevance to modern law enforcement concerns" that animated the ACCA. Id . at 580 n.3, 593, 110 S.Ct. 2143 (citation omitted). The Supreme Court instead adopted a broader construction of "burglary" that encompasses "at least" any ...