United States v. Bibian Garcia-Montejo

Case: 13-40737 Document: 00512652932 Page: 1 Date Filed: 06/04/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40737 United States Court of Appeals

Summary Calendar Fifth Circuit

FILED

June 4, 2014

UNITED STATES OF AMERICA, Lyle W. Cayce

Clerk

Plaintiff–Appellee

v.

BIBIAN GARCIA-MONTEJO,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:13-CR-142-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Bibian Garcia-Montejo pleaded guilty to violating 8 U.S.C. §§ 1326(a)

and (b) for unlawfully being in the United States subsequent to deportation

following an aggravated felony conviction. He appeals his sentence of 41

months of imprisonment, contending that the district court erred in concluding

that his prior Florida burglary conviction warranted a 16-level enhancement

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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No. 13-40737

under § 2L1.2 of the United States Sentencing Guidelines. We vacate and

remand for resentencing.

I

Bibian Garcia-Montejo pleaded guilty to violating 8 U.S.C. §§ 1326(a)

and (b) for being unlawfully present in the United States after his deportation

following an aggravated felony conviction. The Presentence Investigation

Report (PSR) calculated a total offense level of 21 and a criminal history

category of II. The total offense level included a 16-level enhancement under

§ 2L1.2(b)(1)(A) of the United States Sentencing Guidelines based on his 2009

Florida burglary conviction. This resulted in an advisory Guidelines range of

41 to 51 months of imprisonment. Garcia-Montejo filed no objections to the

recommendations in or conclusions of the PSR. The district court sentenced

Garcia-Montejo to 41 months imprisonment and one year of supervised release.

Garcia-Montejo now appeals his sentence contending that the district court

erred by applying the 16-level crime of violence enhancement.

II

“We review de novo whether a prior conviction constitutes a crime of

violence within the meaning of the Guidelines.” 1 The Guidelines define a crime

of violence as (1) any offense in a list of enumerated offenses that includes

“burglary of a dwelling,” or (2) any other offense that “has as an element the

use, attempted use, or threatened use of physical force against the person of

another.” 2 The Government’s only contention is that Garcia-Montejo’s Florida

burglary conviction qualifies as a crime of violence because it constitutes the

enumerated offense of “burglary of a dwelling.”

1 United States v. Sanchez, 667 F.3d 555, 560 (5th Cir. 2012).

2U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); see also United States v. Esparza-Perez, 681 F.3d

228, 229 (5th Cir. 2012).

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Garcia-Montejo did not object to the crime of violence enhancement at

the district court. Because he failed to object, we review his challenge for plain

error. Plain error exists if “(1) there is an error, (2) the error is plain, . . . (3)

the error affect[s] substantial rights,” and (4) “the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” 3 The plainness

of an error is judged from the time of appeal, not the time of trial. 4

III

We employ a categorical approach in determining whether an

enumerated offense qualifies as a crime of violence under § 2L1.2. 5 “[W]e

examine the elements of the offense, rather than the facts underlying the

conviction or the defendant’s actual conduct, to determine whether an offense

meets the definition of a [crime of violence].” 6 However, if the statute of

conviction encompasses multiple, distinct offenses, at least one of which would

not qualify as a crime of violence, we apply a modified categorical approach. 7

Under the modified categorical approach, we may examine certain additional

documents in the convicting court’s record to determine whether a guilty plea

conviction fell under a particular subsection of a divisible statute. The state

court documents that we may consider include the charging documents,

written plea agreement, transcript of the plea colloquy, and any explicit factual

findings or conclusions of law to which the defendant assented. 8 Once we have

3Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013) (alterations in original)

(internal quotation marks omitted); see also United States v. Escalante-Reyes, 689 F.3d 415,

419 (5th Cir. 2012) (en banc).

4 Henderson, 133 S. Ct. at 1129.

5 United States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007).

6 United States v. Ortiz-Gomez, 562 F.3d 683, 684 (5th Cir. 2009).

7United States v. Gore, 636 F.3d 728, 732 & n.17 (5th Cir. 2011) (citing Johnson v.

United States, 559 U.S. 133, 144-45 (2010)).

8 Johnson, 559 U.S. at 144.

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pared down the statute based on the information in the approved documents,

we presume that the conviction “rested upon nothing more than the least of

the acts criminalized, and then determine whether even those acts are

encompassed by the generic federal offense.” 9 To determine whether an offense

qualifies as an enumerated offense we use a “common sense approach” that

looks to the “ordinary, contemporary, [and] common meaning.” 10 If “the state

definition for an offense is broader than the generic definition, a conviction

under that state’s law cannot serve as a predicate for the crime of violence

enhancement.” 11

Applying the plain error standard we must first determine whether there

was an error. Garcia-Montejo was convicted of burglary in Florida. The

criminal information to which he pleaded guilty charged that he “did

knowingly enter or remain in a dwelling, the property of [the victim], with

intent to commit an offense therein, and in the course of committing the

burglary made an assault or battery upon [the victim], contrary to Florida

Statute 810.02(1) and 2(a).” The relevant portions of the Florida burglary

statute in force when he committed this offense defined burglary as follows,

1. Entering 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

2. Notwithstanding a licensed or invited entry, remaining in a

dwelling, structure, or conveyance:

9Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (brackets and quotation marks

omitted).

10United States v. Sanchez, 667 F.3d 555, 560-61 (5th Cir. 2012); see also United States

v. Rodriguez, 711 F.3d 541, 556-58 (5th Cir. 2013) (en banc) (explaining our plain-meaning

approach to deriving the “generic, contemporary meaning” of non-common-law-offense

categories).

11 Sanchez, 667 F.3d at 561 (brackets omitted).

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a. Surreptitiously, with the intent to commit an offense

therein[.] 12

This is not the first time this court has been asked to determine whether

an offense under this statute categorically qualifies as a crime of violence. In

United States v. Gomez-Guerra, 13 we held that a conviction under § 810.02 did

not qualify as the enumerated offense of burglary of a dwelling because the

statute criminalized a broader range of conduct than the generic, common

sense definition of burglary of a dwelling. 14 Namely, Florida law defines

“dwelling” to include not just the actual building but also the curtilage

surrounding the building:

(2) “Dwelling” means a building or conveyance of any kind, . . .

whether such building or conveyance is temporary or permanent,

. . . which has a roof over it and is designed to be occupied by people

lodging therein at night, together with the curtilage thereof. 15

Because dwelling is defined to include the curtilage, and the “ordinary,

contemporary, common meaning of burglary of a dwelling does not extend to

the grounds around the dwelling,” 16 we held in Gomez-Guerra that the least

culpable act that satisfied the statutory count of conviction was categorically

not a crime of violence.

The Government in this case argues that Gomez-Guerra is not

controlling because the facts show that the Garcia-Montejo did not enter

curtilage, but actually entered a residence. The Government asserts that

12 FLA. STAT. ANN. § 810.02 (West 2009).

13 485 F.3d 301 (5th Cir. 2007).

14 Gomez-Guerra, 485 F.3d at 303-04.

15 FLA. STAT. ANN. § 810.011(2) (West 2009) (emphasis added).

16 Gomez-Guerra, 485 F.3d at 304.

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under United States v. Castillo-Morales, 17 if the documents we may evaluate

under the modified categorical approach demonstrate that the defendant

entered the residence rather than the curtilage, then the conviction does

constitute a crime of violence under the enumerated offense clause. In Castillo-

Morales, we again evaluated whether a conviction under the Florida burglary

statute constituted a crime of violence as a “burglary of a dwelling.” We held

in Castillo-Morales that it did, because the defendant’s plea agreement

stipulated to facts laid out in the charging affidavit, which specified that the

defendant had in fact burglarized the inside of a residence rather than the

curtilage. 18 “We hold that when a defendant stipulates that ‘a factual basis’

for his plea is present in ‘court documents,’ courts may use any uncontradicted

facts in those documents to establish an element of a prior conviction.” 19

Here, however, we do not have any “court documents containing the

factual basis for the conviction.” 20 Under the modified categorical approach,

when there is a guilty plea conviction, our review is “limited to examining the

statutory definition, charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial judge to which the

defendant assented.” 21 Of this limited class of documents, we have only the

charging instrument and the statutory definition entered into the record before

us. Neither of these documents shed light on the precise elements of Garcia-

Montejo’s conviction. The charging document is silent on whether Garcia-

Montejo entered the building or merely the curtilage. It simply uses the term

17 507 F.3d 873 (5th Cir. 2007).

18 Castillo-Morales, 507 F.3d at 875-76.

19 Id. at 876.

20 See id. at 877.

21Shepard v. United States, 544 U.S. 13, 16 (2005); see also Johnson v. United States,

559 U.S. 133, 144 (2010).

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“dwelling,” which as discussed above, includes both. 22 We do not have the

Florida sentencing transcript. We do not have any findings of fact by the

Florida judge. We do not have a copy of the plea agreement. We do not have

a copy of the charging affidavit.

The Government responds that the factual predicate for the conviction

is discussed in the PSR. It is true that the PSR states that, “[a]ccording to the

charging affidavit . . . the defendant removed the screen and two (2) panes of

glass from a window of the victim’s residence. He entered the habitation

through the window and committed . . . battery upon [the victim].” But an

uncorroborated summary of a charging affidavit that contains facts to which

the defendant may or may not have stipulated or pleaded guilty is not one of

the approved documents that we may evaluate under the modified categorical

approach. As we have made clear before, we cannot rely on a recitation of facts

in the PSR to determine whether a prior conviction constitutes a crime of

violence. 23 Even if we were satisfied that the PSR accurately portrayed the

underlying facts, there is no indication that Garcia-Montejo pleaded guilty to

these facts or stipulated to them, which was crucial to the incorporation of the

charging affidavit in Castillo-Morales. 24

The Government counters that we have previously held that in certain

situations reliance on the PSR for a crime of violence determination does not

22 FLA. STAT. ANN. § 810.011(2) (West 2009).

United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (“[T]he district court

23

was not permitted to rely on the PSR’s characterization of the offense in order to make its

determination of whether it was a ‘drug trafficking offense.’”) (citing Shepard, 544 U.S. at 16,

19-23).

24 Castillo-Morales, 507 F.3d at 876; see also Shepard, 544 U.S. at 20 (speaking of the

need to “avoid[] subsequent evidentiary enquiries into the factual basis for [an] earlier

conviction” as a reason to limit the judicial record for determining whether a conviction was

a violent felony under the Armed Career Criminal Act).

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rise to the level of plain error if the defendant has admitted those facts. 25 The

Government argues that Garcia-Montejo admitted the facts in the PSR by

failing to file an objection to the PSR in the district court. But failure to object

to the PSR is inusufficient. 26 Even in United States v. Martinez-Vega, 27 the

principal case on which the Government relies, the defendant had at least

admitted in open court that “everything in the [PSR] [was] correct.” 28 We have

no analogous statement here. Further, in Martinez-Vega the lesser included

charge in the indictment was categorically a crime of violence. 29 That is not

the case here. Rather, the least culpable conduct that would satisfy the

criminal information here has been held, by this court, to categorically not be

a crime of violence under the enumerated offense clause. 30

Because the Government has failed to introduce into the record any trial

documents that further define the term dwelling as it was used in the criminal

information, we must presume that Garcia-Montejo violated the statute in the

least culpable manner. 31 This court has already held that a violation of the

statute in that manner is categorically not a crime of violence under the

enumerated offense clause. 32 It does not fit the generic, contemporary

definition of “burglary of a dwelling” because it encompasses burglary of the

See United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006); United States

25

v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006).

26See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (holding that it

was clear and obvious error for the district court to rely only on the PSR to make its crime of

violence determination).

27 471 F.3d 559 (5th Cir. 2006).

28 Martinez-Vega, 471 F.3d at 563 (second alteration in original).

29Id.; see also id. at 564 (Owen, J., concurring) (“The lesser charge in the indictment

stated that Martinez-Vega [committed sexual assault of a minor].”).

30 United States v. Gomez-Guerra, 485 F.3d 301, 303-04 (5th Cir. 2007).

31 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).

32 Gomez-Guerra, 485 F.3d at 303-04.

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curtilage rather than only the burglary of an actual dwelling. Therefore, the

district court clearly erred when it applied the 16-level crime of violence

enhancement. This clear error satisfies the first two prongs of the plain error

standard of review. 33

We also conclude that the error affected the defendant’s substantial

rights. “When the rights acquired by the defendant relate to sentencing, the

‘outcome’ he must show to have been affected is his sentence.” 34 A sentencing

error affects a defendant’s substantial rights if he can show “a reasonable

probability that, but for the district court’s misapplication of the Guidelines,

[he] would have received a lesser sentence.” 35 The erroneous application of the

Guidelines resulted in a 16-level enhancement for Garcia-Montejo. With the

enhancement his Guidelines range was 41-51 months of imprisonment.

Without the enhancement, he faced a Guidelines range of 0-6 months of

imprisonment. This is a significant disparity. The two ranges do not overlap.

This is sufficient to establish that Garcia-Montejo’s substantial rights were

violated. 36

The fourth prong of the plain error test is whether the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” 37

This is a discretionary test. In previous decisions we have determined that if

33 See Puckett v. United States, 556 U.S. 129, 135 (2009) (laying out the four-prong test

for plain error).

34 United States v. John, 597 F.3d 263, 284 (5th Cir. 2010) (citing Puckett, 556 U.S. at

142 n.4).

35 United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008) (citing United

States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005)).

36See, e.g., John, 597 F.3d at 285 (concluding that an error that would have reduced

the advisory Guidelines range from 97-121 months to 70-87 months affected the defendant’s

substantial rights); see also Gonzalez-Terrazas, 529 F.3d at 298-99.

37 Puckett, 556 U.S. at 135.

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the district court’s error clearly and substantially affects a defendant’s

sentence, then that error substantially affects the fairness, integrity, and

public reputation of the judicial proceedings. 38 In the present case, the

sentence imposed was significantly outside of the applicable Guidelines range

had the 16-level enhancement not been applied. Under these circumstances,

we exercise our discretion and we determine that the error was substantial

enough to seriously affect the fairness, integrity, or public reputation of the

judicial proceedings.

We vacate the sentence of the district court and remand the case for

resentencing. We express no opinion on whether the district court should

permit the Government to supplement the record on remand with documents

that would conclusively establish that Garcia-Montejo’s count of conviction was

for burglary of a residence rather than of the curtilage.

* * *

VACATED and REMANDED.

38 E.g., John, 597 F.3d at 286-87; United States v. Price, 516 F.3d 285, 289-90 (5th Cir.

2008).

10